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BZSE Lawyers Jeroen Eric Jansen Rik Bergman Pieter Soons Jelmer Snow Joeri Essed Camiel Koster Roeland Zwanikken Karel Frielink Gert Bergman Jaap Maris Manon Eijgenraam Rogier Wouters
Independence and integrity are paramount to the twelve lawyers of BZSE. They operate and litigate in an open, transparent and independent manner in order to represent the best interests of their clients. This has provided the lawyers of the office with a strong reputation, notably among local and international corporate clients ... read more
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Friday, September 04, 2015

PRESCRIPTIVE RIGHTS OF PROPERTY RIGHTS (REAL ESTATE) as from 2000

By Jelmer Snow , filed under: Civil

What is the status of your right where it concerns property rights in Sint Maarten in 2015? The introduction of Article 106 A in January 2012 might have controversial consequences.

Article 105 of Book 3 of the Civil Code of Sint Maarten regulates the acquisition of a good or goods by a possessor through an acquisitive prescription. This is a major change with the past (before the year 2000) and it states:

1. He who possesses an asset (property right) at the moment on which the right of action (legal claim) to end that possession has become prescribed, acquires that asset, even if he did not possess it in good faith.
2. Where a person had lost possession before that moment, but regains it within one year after he had lost it or regains it as a result of a legal claim that was filed within that year, he is regarded to be the possessor meant in the previous paragraph.

Article 306 of Book 3 regulates the liberative prescription and reads:
- Rights of action become prescribed upon the expiry of twenty (20) years, unless the law provides otherwise.

Based on this, a person, who possesses a parcel of land regarding which the twenty (20) year term of article 3:306 CC expires, acquires the property rights of that parcel of land notwithstanding the possible fact that he is of bad faith with regard to the actual legal ownership of the parcel of land and also no matter how long the actual possession of this person took.

The possession at that moment must however be unambiguous. In several court decisions handed down by the Court of First Instance in Sint Maarten it has been determined that constructing a house on a parcel of land and using it as a vacation home is considered to be unambiguous as meant in this article. The possession must in other words be executed in such a way that the legal owner understands that he/she/it will lose the property rights thereto if no action is taken.

In January 1, 2012 a new article 106a was added to Book 3, which regulates that for a possessor who knew, or should have known, that the parcel of land being possessed was owned by the government, acquiring the prescriptive of that parcel of land is out of the question.
In a court decision dated July 21, 2015 the Court of First Instance on Sint Maarten has however ruled that this specific article 3:106a is in conflict with the articles 15 and 16 of the ‘Staatsregeling’ of Sint Maarten as well as the with protection of private ownership and the right of equality as laid down in the European Convention on Human Rights, and therefore not applicable. It remains to be seen whether this specific ruling will remain standing.