PHILIPSBURG–The Joint Court of Justice ruled Friday that Country St. Maarten is entitled to collect arrears in long-term land rent by means of a writ. The Court of First Instance had decided otherwise in December 2016, because the obligation to pay the amount is of a private-law nature, but this judgment was annulled by the Court of Appeals.
The case was filed by Country St. Maarten against Laissez Faire NV in January 10, 2017, and concerned a notarial deed of July 5, 1990, in which the right of long lease for a period of 60 years concerning a (water) parcel of 3,700 square metres in Oyster Pond was granted to Laissez Fair by the Island Territory of St. Maarten.
Under the agreement, the leaseholder has the obligation to pay the annual land rent in advance at the Receiver’s Office. The rate was set at one guilder per square metre, which could be revised by decree of the then-Executive Council after expiration of a period of 10 years, after transcription of the deed of granting the right of long lease in the public registers.
The land given out in long lease was only to be used for the construction of three piers after the Executive Council’s approval of the building plan had been obtained.
In June 2007, Laissez Faire send in a request to alter the designation in the zoning plan to two piers with commercial buildings and berthing for recreational vessels.
In a response of May 26, 2008, the Executive Council sanctioned the alteration under the condition that the land rent for the long-lease was set at NAf. 6 per square metre, or NAf. 22,200 in total, as per July 16, 2008. The annual fee would be up for review every five years, for the first time on July 16, 2012.
In the Ordinance on the Issuing of Property it is stated that the annual long-lease fee amounts to eight per cent of the value of the land to be determined by the Minister, and previously the Executive Council.
By letter of its lawyer, Laissez Faire withdrew its request on August 14, 2008, and expressed its wish to continue “the right of long lease in its original format, and not altered based on your decision of May 26, 2008.”
The Island Territory, and after October 10, 2010, Country St. Maarten and the Ministry of Public Housing, Spatial Planning, Environment and Infrastructure VROMI, never responded to this or any other letters sent by Laissez Faire.
As of 2009, Laissez Faire ceased payment of any amount for long lease. The tax collector took action several times to collect monies based on the altered terms for long lease of NAf. 6 per square metre, and on April 19, 2016, a writ was served for the amount of NAf. 175,673. On December 2016, the tax collector imposed a lien on the registered properties of Laissez Faire.
The piers and an apartment complex belonging to The Great House and Marina were destroyed by Hurricane Irma in September 2017.
The Joint Court of Justice ruled on Friday that Country St. Maarten is entitled to collect arrears in the payment of long-term land rent by means of a writ.
“The Court of First Instance had decided otherwise because the obligation to pay the fees was of a private-law nature, but this judgment was annulled by the Court. Even if the establishment of land lease on government land, the determination and modification of the terms for long lease and the charging of fees is of a private-law nature, the collection of fees can be done by a writ of execution, according to fiscal rules.
“The reason for this is that the amount of the annual land rent is legally determined, namely at a certain percentage of the land value to be determined by the government. This means that the ordinances on collection and enforced collection are largely applicable,” the Joint Court said in a statement.
The Court annulled the contested verdict in which the tax collector’s lien was lifted, as Laissez Fair should have filed a case against the collector and not against Country St. Maarten. As a result of the annulment, the lien will revive, with the proviso that changes made in the legal status of the attached properties in the period between the lifting of the lien and the annulment must be respected.
The Court stated that Laissez Fair could submit its dispute about the amount of long lease to a civil court. The company was ordered to pay the legal costs of the procedures in the Court of First Instance and the Court of Appeals, which were estimated at NAf. 8,182 in total.
Source: The Daily Herald https://www.thedailyherald.sx/islands/85478-laissez-faire-loses-case-about-oyster-pond-lease