Published On: Sat, Jan 29th, 2022

Court freezes Over the Bank long lease decisions

PHILIPSBURG -- The Court in First Instance criticized successive ministers of Public Housing, Urban Planning, Environment and Infrastructure VROMI) for the way they deal with the issuance of rights of long lease to domain land. On Thursday the court issued an “Over-the-Bank-standstill” order that forbids VROMI to grant rights of long lease to parcels of land in Over the Bank to others than the plaintiffs who took the country to court.

In 2016, then VROMI-Minister Angel Meyers signed six undated documents that seemingly gave the right of long lease to parcels of land in the Over the Bank area to the plaintiffs. These documents mention lot numbers, but not a cadastral description in a letter of admeasurement. The Cadastre produced these letters in 2016 at the expense of the plaintiffs.

In August of 2016, Meyers instructed Darryl Stuart, the Head of Domain Affairs to formalize the issuance of long lease rights to 23 others. In the department's advice, Stuart advised the minister to wait with issuing these rights until the court had ruled on a dispute about the ownership of the land. The advice also noted that it is crucial to put a land assignment policy in place “to lend more objectivity and transparency to the process.”

Meyers ignored these recommendations, informed Stuart that he had manually adjusted the draft long lease agreements and instructed him “to convey the correct information in further handling the concept decrees.”

In January 2017, Christophe Emmanuel had taken office as Meyers’ successor. In a letter to one of the plaintiffs he wrote that “no official decree has been issued, which means that the draft decree cannot be executed.” Emmanuel pointed out that there is no access road and no infrastructure and that the land was subject to a lien by a third party that disputed that the government owns the land.

That last remark must have been a mistake or an obvious lie, because, according to the court ruling, the lien on the land was lifted at the end of 2016. “This should have been reason for the Minister of VROMI to sign the documents not before the lien was lifted. But a lien is no justification to deny the right of long lease.”

The plaintiffs presented in court a decision document dated January 29, 2021, in which the Secretary General of VROMI (Kurt Ruan as Acting SG, ed.) and the Head of Domain Affairs advised the minister to agree with granting rights of long lease in Over the Bank to 25 people (the plaintiffs not among them).

The attorney for the country, Zylena Bary, asked the court to leave confidential documents submitted by the plaintiffs out of the equation. These documents were mainly email-messages from the Cadastre and from civil servants. The court did not go along: “The country should at least have made plausible that the plaintiffs obtained these documents unlawfully.”

Furthermore, the court  pointed out that, if the country wants to grant domain land in long lease, it also has to abide by the rules established in the national ordinance long lease. Said ordinance is, by the way, very old and it has never been adjusted to reflect changes in the civil code in 2001.

Bary also argued that the right of long lease had expired because the decrees had not been added to the public registry within six months. No, the court ruled: the decisions are undated and the country itself has prevented the establishment of the right of long lease.

The court concluded that the country, while it had bound itself to grant plaintiffs their rights of long lease, had not done this and was also not able to do this because of the lien a third party had put on the property.

“Successive ministers of VROMI have been unwilling to grant the right of long lease to the plaintiffs. The current minister (Doran) calls on the general interest but he does intend to grant rights of long lease to 25 others,” the court ruling states.

This, the court ruled, is the heart of the matter. “A minister has to abide by the general principles of good governance.” The ruling mentions the equality principle and the prohibition of arbitrariness. “Every citizen must be able to compete for registered property when there are several candidates.”

“It is the duty of the minister to establish criteria for the selection of candidates who want to obtain a right of long lease. These criteria have to be objective, testable and reasonable,” the ruling states. The minister must also make these criteria public. “It is essential that the minister acts transparently.” Again the ruling refers to the equality principle, equal opportunities and a fitting level of openness related to the availability of rights of long lease, the selection procedure, a time schedule and the selection criteria.

“Successive ministers of VROMI have issued land in long lease without any underlying policy,” the ruling states. “The court has the impression that successive ministers have taken maximum advantage of their discretionary authority to issue land in long lease.”

The court furthermore notes that ministers have dismissed internal advice that served the general interest. “One can guess the reason, but it will in particular be related to ministerial violations of the public order and good morals.”

The court ruling also contains an explicit warning to the person of the minister. “Without published policy a VROMI-minister should not be allowed to take decisions if there are several candidates. If he does this anyway, he runs the risk that the decision will be declared unlawful. It is not part of this procedure, but the person of the minister runs financial risks if he binds, or tries to bind, the country to actions that are unlawful or in violation of the public order and good morals. So far, this has not manifested itself in civil law procedures but this does not mean that private liability versus the country or a third party is impossible.”

The court ruled after contemplating all aspects of the case that it cannot grant the plaintiff’s request to force the country to give them the (promised) rights of long lease. “This would violate the rules of good governance. One cannot demand that the country acts in violation of these principles.”

The court in its ruling gave former Minister Angel Meyers a piece of its mind as well: “The documents he signed in 2016 create the impression that he wanted to establish the rights of long lease for the plaintiffs without having objectively justified reasons.”

But at the end of the day, the government is not out of the woods yet. “What applies to former ministers, is also valid for the present one,” the ruling states. “The intention to grant rights of long lease to 25 people also leads to acting in violation of the general principles of good governance.”

The court decided that an “Over-the-Bank-standstill” would do most justice to the parties involved and to the general interest. It therefore forbids the country to issue rights of long lease in Over the Bank to others than the plaintiffs as long as there is no decision about the dispute in a regular court procedure. Violating the court order, which is enforceable with immediate effect, carries a penalty of $500,000 US Dollars.



Some articles or portions of articles are restricted exclusively for our registered members and paying subscribers. Please login here to read the rest of this article. If you do not already have a paid subscription, you will need to register here and pay for a subscription first in order to gain access to our website to read articles or contents that are restricted to paid subscribers. You need to buy at least a Day subscription for 75ct to gain access. Or log in first if you are already a registered paying subscriber to this website. Click here to register and support our work with a paid subscription.