Longstanding undivided property
The Aruba Civil Code (ACC) was drastically refurbished per September 1st of 2021. Among others, a new law was introduced for a community of assets consisting of one property that has remained undivided for many decades, a so-called longstanding undivided property (langdurig onverdeeld gebleven boedel). The new law is set out in articles 3:200a thru 3:200h ACC.
The new law was introduced to solve the main issue with longstanding undivided property, i.e., an accumulation overtime of unknown or untraceable rightful owners (deelgenoten) as a result of which a legally binding division of the property is frustrated (article 3:195 ACC).
The new law opens the possibility for the Court in First Instance of Aruba to grant the longstanding undivided property in sole ownership to the user.
It is noted that other legal alternatives do not offer an adequate solution to the problem, e.g., article 3:181 ACC (forced representation); article 3:174 ACC (consent in lieu); article 3:27 ACC (conveyance of ownership); article 4:204 paragraph 1.a ACC (appointment of a liquidator for an unattended estate).
Legal definition of a longstanding undivided property
A longstanding property (hereinafter: the property) is defined as follows (3:200a paragraph 1 ACC): i) a community of assets that consists of 1 (one) property that has remained undivided for so long ii.a) that it is likely that the owners can no longer be traced, ii.b) or if the owners can be traced, that their individual shares in the property are very small.
The wording ‘very small’ is relative. The value of the shares of the traceable owners is considered negligible if for instance each individual share would represent 10 m2 of the property (memorie van toelichting).
Who is deemed a user of the property?
The following person is deemed a user of the property:
a) a person that resides legally in Aruba and that has been using the property for at least 10 years, which period may be shortened by the Court in exceptional cases (3:200b paragraph 1 ACC).
b) a presumed descendant of the original owner of the property, whether or not he actually uses the property and, provided his share in the property is negligible (3:200a paragraph 3 juncto 3:200b paragraph 3 ACC).
The presumed descendant may protest against granting the property in sole ownership to the person mentioned under a (3:200b paragraph 4 ACC).
c) a person with an exceptional (emotional) attachment to the property, e.g., a person that was born and raised on the property and has lived his entire life on the property (ECLI:NL:HR:2020:257), (3:200b paragraph 3 ACC).
d) the landlord and tenant. The landlord has priority over the tenant under the assumption that the landlord is closer connected to the property than the tenant (3:200b paragraph 2 ACC).
Division by the Court ex article 3:185 ACC
If some owners can be traced and provided their individual shares are not negligible, the Court may divide the portion of the property that coincides with the number of traceable owners in accordance with article 3:185 ACC (article 3:200a paragraph 3 ACC).
For example: if the traceable owners constitute 1/3 of all presumed owners, the Court may divide 1/3 of the property in accordance with article 3:185 ACC and grant 2/3 of the property in sole ownership to the user(s).
Development proposal to be filed with the Court
For the property to be granted to him in sole ownership, the user must file a proposal with the Court for the development of the property, as well as provide security for the development costs (3:200c paragraph 1 ACC). The Court will request the opinion of the Aruba government on the filed proposal.
If the user is unable to meet these conditions (for instance due to a lack of funds), the Court may grant the property in ownership to the Aruba government, or a (housing) foundation under supervision of the Aruba government, that will be responsible for the development of the property. The developed property is subsequently issued to the user in ownership, or long lease, or lease (3:200d, 3:200e ACC).
The Court may temporarily exclude a sale of the property, or issuance in usage to third parties by the user in order to discourage speculative purposes (3:200e paragraph 2 ACC).
Who may file the request with the Court?
The request may be filed by any interested party, including among others the person that lives on the property, the Aruba government, a housing foundation or the Public Prosecutor (3:200f paragraph 1 ACC).
The untraceable owners are notified by public notice ex article 5 sub 7 Procedural Law (3:200f paragraph 4 ACC). Country Aruba is also a party to the proceedings because it is a matter of public interest (3:200f paragraph 5 ACC). Holders of liens or mortgages on the property are also notified.
Miscellaneous
Sale of the property, security for monetary claims of owners
In case the property is sold, the Court may instruct the notary to reserve a portion of the sales revenue for no longer than 5 years as a security for the claims of owners that may show up to claim their share in the sales revenue (3:200 paragraph 4 ACC).
The new law excludes statutory ownership, no retroactive effect
The possessor (bezitter) of the property does not become statutory owner if he knows that it constitutes a longstanding undivided property (3:200a paragraph 5 ACC).
The new law lacks retroactive effect, however. Therefore, the possessor may have become the statutory owner of the property prior to the effective date of September 1st, 2021, by virtue of article 3:105 ACC (bevrijdende verjaring) which does not require possession in good faith (ECLI:NL:HR:2020:257).
Applicability of the new law
The new law is also applicable to limited rights on the property, e.g. right of long lease, or right of superficies (opstalrecht) or right of apartment (3:200h ACC).