TIME-SHARE UNDER THE LAWS OF THE DUTCH CARIBBEAN
Part-time apartment right or right of use
Since the entering into force of the Netherlands Antilles Timeshare National Ordinance (‘Landsverordening regeling gebruik in deeltijd van onroerende zaken en aanpassing appartementsrecht’), a new regime for timeshare business is applicable.
According to the Explanatory Memorandum to the Ordinance, a timeshare right can be considered as a part-time apartment right (‘deeltijdappartementsrecht’) or as the purchase of part-time right of use of an immovable property (‘koop van rechten van gebruik in deeltijd van onroerende zaken’). Such part-time right can be a right in rem (‘zakelijk recht’) or a right in personam (‘persoonlijk recht’).
The ordinance states that an immovable property can be split up in apartment rights and part-time apartment rights. The leaseholder (‘erfpachter’) or the holder of a superficies (‘opstaller’) can only split up in apartment rights and part-time apartment rights if the owner of the land, in this case the Island Government, grant its permission to split up. If the owner neglects without reasonable cause to grant this permission, the leaseholder can request the court to grant permission.
A part-time right of use of an immovable property can be a right in rem or a right in personam. A right in rem is a right that should be respected by other people generally, such as ownership of property. The right is attached to the property. For example, a mortgage is a right in rem. If the mortgagee sells the house without releasing the mortgage, the new owner gets a house that is mortgaged.
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
