Belvedere tenants may withhold rent payments to fix their homes | THE DAILY HERALD

BELVEDERE–Eighteen tenants of fourteen rental properties of St. Maarten Housing Development Foundation (SMHDF) in Belvedere have obtained permission from the Court of First Instance to use the maximum amount of 75 per cent of the arrears in rent or of current lease periods to repair the hurricane damage to their dwellings. That is the outcome of an injunction filed by tenants against their landlord in which the Judge presented his decision on Friday.

To this ruling, the Judge attached the condition that tenants first pay 25 per cent of the arrears or 25 per cent of the current lease period to their landlord, within 14 days. SMHDF was ordered to allow the scheme and must also pay the legal fees attached to the procedure.

The Belvedere tenants filed a court case July 11, in which they were represented by attorney Geert Hatzmann, as their landlord had failed to repair their homes since the passing of Hurricane Irma. However, there also was already a considerable backlog in maintenance prior to the 2017 hurricanes, the tenants claimed.
The case was heard August 31, during which the Judge ordered an inspection of the premises, which took place September 11.

‘Absolutely shocked’
The Judge said in the verdict that he was “absolutely shocked” about the state of the majority of the tenants’ homes.

“Without exaggeration it can be said that a number of these dwellings are no longer suitable for habitation. The houses have holes in their roofs, windows are broken, shutters can no longer be closed, walls and ceilings are torn, doors are missing or are rickety, electricity cables do not function properly, ceilings are partly missing, and so on.
“As a result of these very serious defects, there is considerable water damage that continues to worsen when it rains. This creates mould formation and increases the chance of diseases,” the Judge said.

“Children are sleeping in bedrooms without ceilings and the daylight is visible through holes in the roof. Tenants have experienced insects, rats, mice, birds and lizards coming into their homes and have taken provisional measures as well and as badly as they could. The tenants live in permanent fear that they are confronted with these vermin in their own homes during the day or at night.

“In addition, the residents cannot sufficiently protect their homes from intruders because windows and shutters are no longer there or can no longer be locked.”
The tenants had filed the injunction because SMHDF had failed to provide them with information about the required maintenance and about the handling of insurance claims and their damaged household items.

SMHDF, represented by attorney-at-law Caroline van Hees, claimed it had initiated negotiations with the World Bank for funding from the Reconstruction Fund for home repairs. However, it was unclear whether or when these funds would be made available. The tenants were informed by letter of January 10, 2018, that the foundation had not received any insurance money as yet.

The tenants had called on the Court to order their landlord to immediately start with repairing the hurricane damage and to set a final date on which the works needed to be completed. The operations were to be supervised by an independent expert and SMHDF should be ordered to pay fines for each day it exceeded the deadline for repairs.
The foundation should also be ordered to start working on the backlog in maintenance short-term, the tenants demanded. As an alternative, they called on the Court to order SMHDF to cooperate with transfer of property without pay.

SMHDF was of the opinion that the tenants’ claims should be rejected.
The tenants claimed that it had been agreed with SMHDF in 2005/2006 that they would obtain their homes via a so-called hire purchase (“huurkoop”), a claim the Housing Foundation contested. The Court rejected this claim, as tenants could not provide any contracts or letters of intent to this effect.

The Civil Code contains several articles stipulating that a landlord is obligated to assist in fixing defects, unless these under given circumstances cannot be required.
When the state of disrepair affects the enjoyment of the rental property the tenant is entitled under the Civil Code to reduce the payment of rent from the day on which he gives the landlord proper notification until the day the defect has been remedied.

In sentencing, the Judge considered that the owner of the properties, SMHDF, also has an interest in repairing the homes as soon as possible.
The Foundation claimed it had insufficient means for repairs and said it had only received a limited amount from the insurer. However, it did not submit any insurance policy or proof of settlement to the Court.

According to SMHDF, the majority of its tenants did not pay rent, which led to insufficient funds. However, this did not relieve the foundation of its obligation to carry out repairs, the Judge stated. “Because it did not do so, the tenants were entitled to suspend rent payments,” he said.

The Judge arrived at the conclusion that there was an “impasse,” as it could not be excluded that SMHDF did not have the money for repairs.
“How it is possible that a housing corporation has no reserves, and apparently insufficient insurance, is an intriguing question, but goes beyond the framework of these summary proceedings,” the Judge added.

He allowed the tenants to use the rent payments for their properties for repairs. These should be primarily aimed at fixing the roofs and making them air- and watertight.
Furthermore, the connection between the roofs and the walls must be closed so that water, wind and vermin no longer have access to the homes. Exterior walls must also be repaired. All non-functioning windows, shutters, external doors and ventilation holes must be repaired, and the properties need to be properly locked to give intruders no chance.
As far as the interior of the dwellings is concerned, the cracks and holes in ceilings and intermediate walls may be repaired, in such a way that they meet the customary requirements, the Judge stated.

In the Court’s view, the most pressing shortcomings “which make life difficult or near impossible,” are hereby addressed. Any other defects and overdue maintenance may be the subject of negotiations between parties or a court case on the merits, the Judge said.
The Court did not order the appointment of an expert supervisor, but said it was advisable that parties appoint such an official.

Source: The Daily Herald