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Thursday, June 25, 2015

St. Maarten Rent Committee decisions since 10-10-10 deemed invalid/voidable

By Joeri Essed , filed under: Civil

On April 13, 2015 the Court in First Instance of Sint Maarten, in its capacity of appellate court for decisions taken by the Rent Committee, passed a judgment that may very well have great implications for all decisions taken to date by compositions of the Rent Committee in which one or more of the

committee members have not been appointed by Country Decree, in Dutch: “Landsbesluit”. The relevant facts are as follows:
On July 18, 2009 a landlord and tenant entered into a lease agreement for a residential property, starting August 1, 2009, for an indefinite period of time. By letter of May 16, 2014 to the Rent Committee, landlord requested permission to terminate that lease agreement effective January 1, 2017, with the purpose of the landlord again occupying/using his property himself as of that date.

On October 3, 2014, the Rent Committee granted the landlord permission to terminate the lease agreement at issue per January 1, 2017, based on the articles of the Regulation. However, this Rent Committee Regulation no longer exists as a result of the Rent Ordinance (AB 2014, no. 8) that went into effect on April 1, 2014. Astonishingly, the Rent Committee was apparently not aware of the fact that new legislation on rent of properties had come into effect half a year prior to their decision of October 3rd, 2014.

The decision of October 3, 2014, which was taken by an acting president and two members of the Rent Committee, assisted by the secretary of the Rent Committee, was timely appealed by the tenant, with as most far-reaching ground of appeal that after 10-10-’10, when Sint Maarten obtained its present constitutional status, none of the (presumed) members of the Rent Committee have been appointed by Country Decree, as previously required by Article 22 of the Rent Committee Regulation, and as of April 1, 2014 required by Article 7: 255 Civil Code. As a result, the Rent Committee cannot have taken a valid decision, entailing permission for landlord to terminate the lease agreement, and consequently the decision of the Rent Committee of October 3, 2014 should be nullified, according to the tenant in his appeal.

In the aforementioned judgment of April 13, 2014 the Court in First Instance of Sint Maarten, acting as appellate court, has followed the tenant in his aforementioned reasoning and has concluded that for a legally valid appointment of the acting president and two members that comprised the Rent Committee that took the decision of October 3, 2014, a Country Decree is required and that such a Decree is absent. Therefore, the Court concluded that the Rent Committee – in as far as that Committee legally exists – could indeed not have taken the decision of October 3, 2014 and consequently the Court nullified that decision. In its judgment the Court does note that in its opinion it is possible to give retro-active effect to an appointment by Country Decree of the members of the Rent Committee, and that such would validate the decision taken by the invalid/non-existent Rent Committee, provided that none of the parties to such a decision appeals to the invalidity of the decision prior to such a Country Decree taking effect.

Whether this aforementioned opinion of the Court about the validation of decisions that have been taken previously by a not legally appointed Rent Committee is correct, seems questionable and at the very least provides food for discussion among legal professionals. Fact of the matter, however, is that the playing field is now open for those who have been negatively affected by a decision of the Rent Committee that has been taken after October 10, 2010…

Joeri Essed
Partner at BZSE Attorneys at LawTax Lawyers