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Housing Corporation Act 1989

CONSOLIDATED ACTS OF SAMOA 2009


HOUSING CORPORATION ACT 1989


Arrangement of Provisions


TITLE


PART I
INTRODUCTION


1. Short title and commencement
2. Interpretation


PART II
THE HOUSING CORPORATION


3. Establishment of Corporation
4. Offices of Corporation
5. Manager of Corporation
6. Deputies
7. Terms of office of appointed members
8. Disqualification of appointed members
9. Vacancies
10. Meetings of Corporation
11. Disclosure of interests
12. Remuneration of appointed members
13. Appointment of officers and employees of Corporation
14. Contracts of Corporation
15. Execution of Documents on behalf of Corporation
16. Committees
17. Delegation of functions or powers of Corporation


PART III
FUNCTIONS AND POWERS OF CORPORATION


18. Functions of Corporation
19. Powers of Corporation
20. Corporation to implement policy of Government


PART IV
SECURITIES FOR LOANS


21. Securities
22. Mortgages of leasehold interests
23. Repayment of Loan


PART V
FINANCIAL PROVISIONS


24. Capital
25. Corporation may issue bonds or stock
26. Securities issued by Corporation to be guaranteed by Government
27. Investments in securities issued by Corporation
28. Other powers to borrow
29. General Reserve and other funds
30. Corporation to maintain approved securities
31. Distribution of profits
32. Audit of Accounts
33. Annual Report


PART VI
GENERAL PROVISIONS


34. Prohibition of procuration fees
35. Exemption from income tax
36. Personal liability of members
37. Regulations


____________


THE HOUSING CORPORATION ACT 1989
1989 No.25


AN ACT to establish the Housing Corporation and to define its functions, powers and duties.

(16 February 1990)


PART I
INTRODUCTION


1. Short title and commencement - (1) This Act may be cited as the Housing Corporation Act 1989.


(2) This Act shall come into force on a date to be appointed by the Head of State, acting on the advice of Cabinet, by Order.


2. Interpretation - In this Act unless the context otherwise requires:


"Appointed Member" means a member of the Corporation appointed by the Head of State under section 3(2)(a) or (f).


"Approved securities" means:


(a) The bonds, stock, debentures, funds, or other securities of the Government; and


(b) Any other securities that are for the time being approved by the Minister for the purposes of this Act.


"Committee" means a Committee appointed under section 16.


"Corporation" means the Housing Corporation established by section 3.


"Financial Year" means the period from the first day of January in any year to the 31st day of December in that year.


"General Reserve Fund" means the General Reserve Fund established and maintained pursuant to section 29.


"Government" means the Government of Samoa.


"Home" includes a Samoan fale.


"Land" includes any interest in land.


"Manager" means the Manager of the Corporation appointed in accordance with section 5; and also means, in relation to any functions, powers and duties of or pertaining to the position of Manager which any other officer of the Corporation is for the time being directed under section 6(1) to exercise and perform, that other officer.


"Member" means a member of the Corporation as set out in section 3(2).


"Minister" means the Minister of Finance.


"Property" includes real or personal property, and any estate or interest in any real or personal property, and any debt, and any thing in action, and any licence or authority, and any other right or interest.


PART II
THE HOUSING CORPORATION


3. Establishment of Corporation - (1) There is hereby established the Housing Corporation.


(2) The Corporation consists of:


(a) The Minister who shall be the Chairperson;


(b) The Attorney-General;


(c) The Chief Executive Officer of the Ministry of Finance;


(d) The Chief Executive Officer of the Ministry Works, Transport and Infrastructure;


(e) The Chief Executive Officer of the Ministry Natural Resources and Environment; and


(f) Four members appointed by the Head of State, acting on the advice of Cabinet, one to be a person having specialist experience in, and knowledge of banking, one to be a person to represent the Public Service Association and the other to be a person to represent the general public.


(3) The Corporation is a body corporate with perpetual succession and a common seal, and is capable of acquiring, holding, and disposing of real and personal property, and of suing and being sued, of investing monies and operating bank accounts and of doing and suffering all other acts and things that bodies corporate may do and suffer.


(4) The powers of the Corporation shall not be affected by any vacancy in its membership.


4. Offices of Corporation - The principal office of the Corporation shall be in Apia and the Corporation may establish branch offices and agencies at such other places as it thinks fit within Samoa.


5. Manager of Corporation - (1) The Head of State, acting on the advice of Cabinet, shall from time to time appoint a Manager of the Corporation.


(2) The Manager shall be appointed for a term of three years, and on such other terms and conditions as may be determined by the Head of State, acting on the advice of Cabinet.


(3) The Manager shall be eligible for reappointment.


(4) The Manager shall be the Chief Executive Officer of the Corporation and shall be responsible to the Corporation for the efficient administration of the operations of the Corporation.


(5) In carrying out the duties, the Manager shall follow any general or special directions given by the Corporation.


(6) The Manager may from time to time be reappointed.


(7) All remuneration and other allowances payable to the Manager shall be paid out of the funds of the Corporation.


(8) The Manager shall not engage in any other business or occupation without the prior written consent of the Corporation.


6. Deputies - (1) On the occurrence from any cause of a vacancy in the office of Manager (whether by reason of death or resignation, or for any other reason), and in the case of absence of the Manager (from whatever cause arising), and from time to time while such vacancy or absence continues all or any of the functions, powers, and duties of the Manager or pertaining to the position may be exercised and performed by any other officer of the Corporation who is for the time being directed by the Corporation to exercise and perform them, whether the direction has been given before the vacancy or absence occurs or while it continues.


(2) No direction given by the Corporation under subsection (1) and no acts done by an officer pursuant to any such direction shall in any proceedings be questioned on the ground that the occasion for the direction had not arisen or had ceased, or on the ground that the officer had not been appointed to the office of Manager.


(3) The Attorney-General, the Chief Executive Officer of the Ministry or Finance and the Chief Executive Officers' of the Ministry of Works, Transport and Infrastructure and of Natural Resources and Environment may each from time to time authorise any other officer of the Ministry to act in his or her place at any or all meetings of the Corporation, or of any Committee.


(4) While any officer authorised pursuant to subsection (3) acts in the place of the Attorney-General, the Chief Executive Officer of the Ministry or Finance and the Chief Executive Officers' of the Ministry of Works, Transport and Infrastructure and of Natural Resources and Environment, as the case may be at any meeting of the Corporation or any Committee he or she shall be deemed for all purposes to be a member of the Corporation or Committee.


7. Terms of Office of appointed members - (1) Every appointed member shall hold office at the pleasure of the Head of State and shall continue in office until his or her appointment is terminated or otherwise comes to an end.


(2) An appointed member shall be eligible for reappointment.


(3) An appointed member may at any time resign from office by notice in writing to the Minister.


(4) If an appointed member dies, resigns, or is removed from office, the Head of State, acting on the advice of Cabinet shall, as soon as practicable appoint another person in place of that member.


8. Disqualification of appointed members - No person shall be capable of being appointed or of continuing to hold office as a member of the Corporation if:


(a) The person is or becomes a member of Parliament; and


(b) The person is an undischarged bankrupt.


9. Vacancies - If an appointed member dies, resigns, or is removed from office, the Head of State, acting on the advice of Cabinet, shall, as soon as practicable, appoint another person in place of that member.


10. Meetings of Corporation - (1) The Chairperson shall preside at every meeting of the Corporation. In the absence of the Chairperson, the members present shall appoint one of their number to preside at that meeting.


(2) The first meeting of the Corporation shall be held on a day and at a time and place to be appointed by the Chairperson and subsequent meetings shall be held at such times and places as the Corporation may from time to time determine provided that not more than two months shall elapse between one meeting and the next.


(3) The Chairperson may at any time convene a special meeting of the Corporation and shall, on the requisition in writing of any three members stating the business to be transacted, within seven days of the receipt by the Chairperson of such requisition, convene a special meeting.


(4) At every meeting of the Corporation the quorum shall be four members.


(5) The proceedings at any meeting of the Corporation shall not be invalidated by any defect in the appointment of a member.


(6) Every question before a meeting of the Corporation shall be decided by a majority of the valid votes of members present.


(7) The Chairperson of any meeting shall have a deliberative vote and in the event of an equality of votes, shall have a casting vote.


(8) Subject to the provisions of this Act, the Corporation may regulate its meetings in such manner as it thinks fit.


11. Disclosure of interests - (1) Any member of the Corporation who, otherwise than as a member, is directly or indirectly interested in any arrangement or agreement made or entered into, or proposed to be made or entered into by the Corporation shall as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the Corporation.


(2) A disclosure under this section shall be recorded in the minutes of the Corporation, and except as otherwise provided by resolution of the Corporation, the member:


(a) Shall not take part, after the disclosure, in any deliberation or decision of the Corporation relating to the arrangement or agreement; and


(b) Shall be disregarded for the purpose of forming a quorum of the Corporation for any deliberation or decision of the matter in respect of which he or she has declared an interest.


12. Remuneration of appointed members - Every appointed member shall be paid out of the funds of the Corporation, such remuneration and such travelling expenses and other allowances, as may from time to time be fixed by Cabinet.


13. Appointment of officers and employees of Corporation - Subject to the provisions of section 5 the Corporation may appoint and employ at such remuneration and on such terms and conditions as it may determine, such officers and employees as the Corporation may consider necessary or desirable for the due performance of the functions of the Corporation.


14. Contracts of Corporation - (1) Subject to section 15 any contract which, if made between private persons, must be by deed shall, if made by the Corporation, be in writing under the common seal of the Corporation.


(2) Any contract which, if made between private persons, must be in writing signed by the parties to be charged therewith shall, if made by the Corporation, be in writing either under the common seal of the Corporation or signed by any person on behalf of and by direction (either general or specified) of the Corporation.


(3) Any contract which, if made between private persons may be made orally, may, if made by the Corporation, be made in the manner specified in subsection (1) or subsection (2) or may be made orally by any person on behalf and by direction (either general or specific) of the Corporation.


15. Execution of documents on behalf of Corporation - (1) The common seal of the Corporation shall only be used by the authority of the Corporation or of a Committee authorised by the Corporation in that behalf, and every instrument to which the seal is affixed shall be signed by two members.


(2) The Corporation may from time to time, in writing under its common seal, authorise any member or members or officer or officers of the Corporation to execute any deeds, instruments, or other documents on behalf of the Corporation, and may at any time in the same manner revoke any such authority.


(3) Any authority under this section to any officer or officers of the Corporation may be given to:


(a) A specified officer or officers; or


(b) An officer or officers of a specified class; or


(c) The holder or holders for the time being of a specified office or of an office or offices of a specified class.


(4) Every person purporting to execute any document on behalf of the Corporation pursuant to this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with an authority under this section.


16. Committees - (1) The Corporation may from time to time appoint Committees, consisting of members, officers or employees of the Corporation, or of other persons:


(a) To advise the Corporation on any matters referred to them by the Corporation;


(b) To carry out research into any matters referred to them by the Corporation; or


(c) For any other purposes specified in this Act.


(2) There may if the Corporation so directs be paid to each of the members of a Committee (not being officers or employees of the Corporation, or full time salaried employees of the Government of Samoa) out of the funds of the Corporation, such remuneration and travelling expenses and other allowances as may from time to time be fixed by Cabinet.


(3) Subject to the other provisions of this Act, and to any directions given by the Corporation, each Committee may regulate its own procedure in such manner as it thinks fit.


17. Delegation of functions or powers of Corporation - (1) The Corporation may from time to time delegate to any Committee, or to any member, officer, or employee of the Corporation, any of the functions or powers of the Corporation, but not including the power of delegation conferred by this subsection.


(2) No delegation under this section may be made to a Committee that consists wholly or partly of persons who are not members, officers, or employees of the Corporation.


(3) Any delegation under this section may be made to:


(a) A specified person;


(b) A person of a specified class;


(c) The holder for the time being of a specified office or appointment; or


(d) The holders for the time being of offices or appointments of a specified class.


(4) Subject to any general or special directions given or conditions imposed by the Corporation, or by any Committee or person by whom any functions or powers are so delegated, the Committee or person to whom those functions and powers are delegated may exercise them in the same manner and with the same effect as if they had been conferred on it or him or her directly by this Act and not by delegation.


(5) Every Committee or person purporting to act pursuant to any delegation under this section, shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.


(6) Every delegation under this section may be revoked at any time by the Corporation, or by the Committee or person by whom it was made, and no such delegation shall prevent the exercise of any function or power by the Corporation, or by the Committee or person by whom the delegation was made.


PART III
FUNCTIONS AND POWERS OF CORPORATION


18. Functions of Corporation - (1) The principal function of the Corporation shall be to lend money on mortgage or other security to such persons as it deems fit to assist any such person to erect, renew, repair, extend, purchase or otherwise acquire a home for the personal occupation of himself or herself or his or her family, or to assist him or her in the acquisition of land upon which he intends to erect a home for such personal occupation.


(2) The Corporation shall also have such other functions as are conferred on it by this Act or by any other enactment.


19. Powers of Corporation - (1) The Corporation shall have all the powers that are reasonably necessary or expedient to enable it to carry out its functions.


(2) Without limiting the generality of subsection (1), the Corporation may from time to time for the purposes of carrying out its functions do all or any of the following things:


(a) Hold, furnish, equip, develop, improve, alter, extend, repair, and maintain any property which is mortgaged or otherwise secured to it;


(b) Enter into covenants or agreements in respect of any property;


(c) Administer, manage, and control any property which is mortgaged or otherwise secured to it; and


(d) Generally carry on any activity or exercise any rights or undertake any liabilities in respect of any property mortgaged or secured to it that might be carried on, exercised, or undertaken by a Mortgagee of property.


(3) Without limiting the generality of subsection (1), the Corporation may also from time to time engage such agents as it thinks necessary or expedient for the carrying out of its functions, and in return for the services rendered by any such agent pay to him or her any fees or other remuneration that may be agreed on between the Corporation and the agent.


20. Corporation to implement policy of Government - In the exercise of its functions and powers under this Act or any other enactment, the Corporation shall give effect to the policy of the Government, as communicated to it from time to time in writing by the Minister.


PART IV
SECURITIES FOR LOANS


21. Securities - (1) Money lent by the Corporation shall be secured on mortgage or other security in such manner and on such terms as the Corporation thinks fit.


(2) The Minister shall from time to time after taking into account recommendations of the Corporation and of the Central Bank of Samoa fix the rates of interest to be paid on money lent by the Corporation so as to make adequate provision to cover the costs of administration of the Corporation and for all other matters incidental to the proper functioning of the Corporation.


(3) Different rates of interest may be fixed under subsection (2) in respect of different securities or different classes of security or different portions of the same loan.


(4) The Corporation shall determine the value and acceptability of every security for lending purposes.


22. Mortgages of leasehold interests - (1) Where a registered leasehold interest in land is subject to any mortgage under which the Corporation is the Mortgagee, the mortgage shall be deemed to extend to and include the Mortgagor's interest in any registered lease that may be granted to him or her in renewal of the mortgaged lease, or otherwise in lieu of the mortgaged lease.


(2) In this section:


"Mortgage" includes a charge.


"Registered" means registered under the Samoa Land Registration Order 1920 (NZ).


23. Repayment of Loans - The Corporation may in its discretion and on such terms as it thinks fit accept cash in payment in advance of the whole or part of the money owing under any mortgage or other security held by it.


PART V
FINANCIAL PROVISIONS


24. Capital - (1) The authorised capital of the Corporation shall be $5,000,000 and may be increased from time to time by an amount proposed by the Corporation and approved by Cabinet.


(2) There shall be paid up by the Government by way of subscription to the capital upon the establishment of the Corporation such amount as may be determined by Cabinet and further payments by way of subscription may at any subsequent time or times be made by the Government in accordance with the determination of Cabinet.


(3) An amount equal to the preliminary expenses paid by the Government for the establishment of the Corporation and the value of any assets vested in the Corporation by the Government shall be deemed to have been paid up by the Government by way of subscription to the capital of the Corporation.


(4) All capital of the Corporation as and when subscribed shall be for the sole account of the Government and may not be transferred or subjected to encumbrance or reduced.


(5) The Government may from time to time cause to be transferred to the ownership of the Corporation any Government land (with or without buildings thereon) and the value thereof may at the option of the Government be deemed to be a payment by the Government on account of its subscription to the capital of the Corporation.


(6) The Minister shall cause to be transferred to the ownership of the Corporation non-interest bearing securities issued by the Government from time to time for such an amount as is necessary for the purpose of preserving the paid up capital from any impairment whenever in the opinion of the Corporation the assets of the Corporation are less than the sum of its liabilities and paid up capital.


25. Corporation may issue bonds or stock - (1) Subject to the provisions of this section, and after consultation with the Central Bank of Samoa, the Corporation may with the prior approval of Cabinet from time to time issue bonds, stock, or other securities at such rate of interest and on such other terms and conditions as it thinks fit, for the purpose of providing funds for carrying on its business under this Act.


(2) All securities issued by the Corporation shall constitute a floating charge on all the assets of the Corporation, and the security created by such charge shall be available pari passu for all holders of such securities without priority or preference among themselves, and without regard to the respective dates on which such securities were issued.


(3) Securities issued by the Corporation shall be for such term, not exceeding 30 years, as the Corporation may in any case determine.


(4) The Corporation may at any time purchase any securities issued by it and shall forthwith cancel the same.


26. Securities issued by Corporation to be guaranteed by Government - (1) All bonds, stock, and other securities of the Corporation issued pursuant to section 25 are hereby declared to be guaranteed in accordance with the following provisions of this section.


(2) If any default is made by the Corporation in the payment of any principal or interest payable by it in respect of any bonds, stock, or other securities referred to in subsection (1), such principal or interest, as the case may be, shall be paid by the Government out of the Treasury Fund within three months of their due dates without further appropriation than this section.


(3) All money paid by the Government under the authority of this section on account of any bonds, stock, or other securities shall constitute a debt due by the Corporation to the Government, and shall be recoverable accordingly.


27. Investments in securities issued by Corporation - Any money which by virtue of any Act or other authority may lawfully be invested in Samoan Government securities may be lawfully invested in any bonds, stock, or other securities issued by the Corporation and guaranteed in terms of section 26.


28. Other powers to borrow - For the effective performance of its functions and the carrying on of its business the Corporation in addition to the powers set out elsewhere in this Act shall have the power to borrow from the Government or any Bank or other Financial Institution in Samoa and may give security for any money so borrowed.


29. General Reserve and other funds - The Corporation may establish and maintain a General Reserve Fund and such other funds or accounts to which shall be credited:


(a) Interest on money for the time being credited to that fund or account; and


(b) Any surplus profits of the Corporation that are credited to such fund or account in accordance with section 32.


30. Corporation to maintain approved securities - The Corporation shall at all times keep invested in approved securities such amount as it thinks fit, being not less in the aggregate than the amount for the time being credited to the General Reserve Fund.


31. Distribution of Profits - After such provisions as the Corporation thinks proper has been made for the depreciation of securities or other assets and for such other matters as in its opinion are necessary for the efficient conduct of the business of the Corporation, the surplus for each financial year shall be paid into the Treasury Fund unless the Minister in his or her discretion, authorises the Corporation to credit it wholly or partly:


(a) In redemption of non-interest bearing Government securities owned by the Corporation;


(b) In payment by the Government by way of subscription to the authorised capital of the Corporation;


(c) To the General Reserve fund of the Corporation; or


(d) To any other fund or account.


32. Audit of Accounts - (1) Not later than three months after the end of each financial year, the Corporation shall prepare a balance sheet, profit and loss account, and statement of cash flows, and such other statements of account as are necessary to show fully the financial position of the Corporation and the financial results of its operation during the year.


(2) The balance sheet, statement, and other accounts shall be audited by the Controller and Chief Auditor.


33. Annual Report - (1) As soon as the balance sheet statement and other accounts have been audited in accordance with section 32 the Corporation shall deliver to the Minister a general report of its operations during that year together with a copy of its duly audited accounts for that year and the report of the Controller and Chief Auditor on those accounts.


(2) A copy of the general report and of the accounts of the Corporation, together with a copy of the report of the Controller and Chief Auditor on the accounts, shall be laid before Parliament within 28 days of their receipt by the Minister if the Assembly is then in session, or, if not, within 28 days after the commencement of the next ensuing session.


PART VI
GENERAL PROVISIONS


34. Prohibition of procuration fees - It shall not be lawful for any person to demand, charge, recover, or receive a procuration fee in respect of any loan from the Corporation.


35. Exemption from income tax - The income of the Corporation shall be wholly exempted from income tax.


36. Personal liability of members - No member shall be personally liable for any act done or default made in good faith by the Corporation, or by any Committee or by any member, in the course of any operations of the Corporation or any Committee.


37. Regulations - (1) The Head of State, acting on the advice of Cabinet may from time to time make regulations not inconsistent with this Act to provide for such matters as are required or contemplated by this Act or are necessary for giving full effect to the provisions of this Act and for its due administration.


(2) Without limiting the general power conferred by subsection (1) regulations may be made for any or all of the following purposes:


(a) Prescribing forms of mortgage or other securities given in favour of the Corporation;


(b) Prescribing forms to be used for any purpose contemplated by this Act;


(c) Providing for such matters as are contemplated by or are necessary for giving full effect to the provisions of this Act and for its due administration.


(d) Providing for criteria to be applied in determining which persons or classes of persons shall be eligible to receive loans;


(e) Providing for criteria to be applied with regard to types of homes and the value, construction and nature of homes in respect of which loans may be under this Act;


(f) Providing for maximum amounts which may be advanced to any one or more persons for the purposes of this Act, and the nature or extent of security to be given with respect to loans; and


(g) Providing for fees to be paid for applications for loans or for any other matters under this Act for which fees may appropriately be charged.


(3) Until such time as regulations are made governing the matters set out in subsection (2)(a), (b), (d), (e), (f) and (g) the Corporation shall itself determine such matters.


REVISION NOTES 2008


This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –


(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.


(b) The fines have been amended and are stated as penalty units as provided for by the Fines (Review and Amendment) Act 1998.


(c) All references to the male gender have been made gender neutral.


(d) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.


(e) Amendments have been made to up-date references to offices, officers and statutes.


(f) Other minor editing has been done in accordance with the lawful powers of the Attorney General.


The following amendments have been made to specific sections of the Act to incorporate amendments made by Act of Parliament passed since the publication of the Western Samoa Statutes Reprint 1978-1996


Section 3 The number "Three" in subsection (2)(f) was replaced with "Four" by the Membership of Statutory Boards and Authorities Act 2001 (No. 9).


This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2007. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.


Revised and consolidated by Graham Bruce Powell
Under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)


REVISION NOTES 2008 No. 2


This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. There were no changes made to this Act since the publication of the Consolidated and Revised Statutes of Samoa 2007.


This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2008. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.


Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)


REVISION NOTES 2009


There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.


This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2009. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.


Revised and consolidated by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).


The Housing Corporation Act 1989 is administered by the Samoa Housing Corporation


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