Country St. Maarten, Cadastre, notary ordered to pay damages for illegal sale

PHILIPSBURG–The Court of First Instance has awarded damages to NHKK Enterprises Limited in Anguilla to the tune of US $130,250 in connection with the purchase of property at the former Caravanserai Beach Resort in Beacon Hill in June 2011.

The piece of property was not “free and unencumbered” as is legally required, but was mortgaged and issued on long-lease. The Judge held Country St. Maarten, the Cadastre and notary Francis Gijsbertha all responsible for the error and awarded damages to NHKK.

NHKK obtained the right of long-lease from Country St. Maarten on June 22, 2011, after it purchased the property from Kildare Properties Limited against payment of $130,250.

Kildare owned Caravanserai between 1996 and August 2014, when the resort was auctioned off. During Kildare’s ownership a notarial deed of division of apartment rights was made up in which 20 apartments were split-off from the mother-resort, among which also was the property that was sold to NHKK.

From a Cadastral extract of June 17, 2011, it emerged that Kildare was the leaseholder. However, it was not mentioned that Scotiabank had obtained mortgage rights on three properties in 2007, 2008, and 2009. “This parcel has no deed,” it was stated in the extract.

In the notary’s deed of transfer, which was received by the Cadastre on June 22, 2011, it also was stated that no mortgages or attachments were known at that moment.

In a letter of April 23, 2013, then-Cadastre Director Clemens Roos informed attorney Jeroen Veen that a number of mortgages were attached to these lots.

“Part of this property was subdivided into a number of apartments. During the conversion the mortgage apparently was removed from the mother-property, which was corrected later. During the time of the transfer these two parcels were mortgaged in connection with the mother-property. The seller must have been aware of this, but apparently failed to inform the notary,” Roos stated in the letter.

In the legal proceedings, NHKK’s lawyer Monique Hofman claimed that the Cadastre had provided incorrect information to the notary in connection with the property’s legal status.

In its Report History Ownership and Current Situation Mortgages and Seizure Parcels of April 9, 2013, the Cadastre wrongly stated about the parcel of 1,321 square metres that it was held in long-lease by NHKK, which bought the right of long-lease from Kildare by deed registered June 23, 2011. “This parcel is not encumbered by any mortgage or seizure,” it was stated in the report.

NHKK claimed it would not have purchased the property, or on different terms, if correct information had been provided.

The Cadastre, represented by attorneys Norbert Hijmans and Pieter Soons, stated that it was well-known that Caravanserai had gone bankrupt and that the curator had sold it to Kildare for $2.9 million. According to the Cadastre, it was common knowledge that projects of such magnitude usually are mortgaged. NHKK and its notary had failed to inform themselves properly, it was stated.

Country St. Maarten’s legal representatives in this case, Richard Gibson Jr. and Aernout Kraaijeveld, claimed the Cadastre had not been at fault, as the notary had failed to request permission from Country St. Maarten to split the long-lease rights. He also had failed to research the matter properly.

On behalf of notary Gijsbertha, attorneys Peter van Dordt and Daniëlla Engelhardt said the development plan for the resort had been approved by the Executive Council, adding that their client had not found any evidence with the Cadastre that the property in question was mortgaged.

The Court ruled against the notary and said he had failed to investigate the matter carefully.

The Judge found that at the moment of the sale in June 2011 the Cadastre’s registers concerning the mortgages on the mother-property had been incorrect and incomplete, which had led the organisation to provide the notary with incorrect information. As such, the Court also held the Cadastre accountable, as well as Country St. Maarten, which holds responsibility for the Cadastre.

All three parties were ordered to pay damages totalling $130,250 with legal interest from June 22, 2011.

Source: The Daily Herald Country St. Maarten, Cadastre, notary ordered to pay damages for illegal sale