OWNERSHIP AND REAL PROPERTY UNDER NETHERLANDS ANTILLES LAW
The system differs considerably from the U.S. system
The system of ownership and holding of real property in the Netherlands Antilles differs considerably from that of the United States and other common law jurisdictions. Under Netherlands Antilles law distinction is drawn between ownership of property on the one hand and legal rights created in relation to the property on the other. The holder of these legal rights exercise rights with respect to the property itself (rights in rem). These rights in rem are to be distinguished from rights in personam which are merely contractual in nature.
In rem rights are absolutely and exclusive, in the sense that the holder of such right may in principle exercise its powers, with respect to the property vis-à-vis all other persons, regardless who is in possession of the property. These are therefore to be distinguished from personal rights such as rights under a contract. Netherlands Antilles law recognizes only a limited number of in rem rights were a parties to a contract are completely free to create any kinds of in personam rights. Rights and rem are trustful ownership, leaseholds, usufruct, mortgage and pledge. As the general in rem rights can only be created by registration in the public records which take place by recording of the title which is the notarial deed or the instrument by which the right to title is vested.
The general rule that real property is freely alienable in the Netherlands Antilles unless restrictions imposed by legal regulations, contractual agreements or the existence of rights in rem. Contractual limitations such as non disturbance provisions may be incorporated into a deed or instrument of transfer with the intention that a same construction can be imposed on the recipients of each successful transfer. This is a type of perpetual restrictive covenant. Those acquiring property will however in principle not be bound by such obligation even if a notarial deed is drawn up and is registered in the land-register.
Karel Frielink
Attorney (Lawyer) / Partner
