De Boer’s analysis on undivided lands, Why the domain principle still decides who owns what on Saba and Statia

GREAT BAY--A growing body of court rulings is reshaping how undivided family lands are handled on Saba, Statia and Bonaire. After roughly seventy-five decisions on so-called “old estates,” Dutch private law scholar Prof. Jan de Boer has sketched the clearest roadmap to date. His analysis, delivered in the wake of recent cases like Henson v. Sint Maarten and Cattle Plantation Saba, explains when families can secure title, when government prevails under the domain principle, and what judges will require from would-be owners.

At the center is article 3:200a of the Civil Code. De Boer is explicit about what it does, and does not, do. The undivided-estates scheme is not a shortcut to sell land. If heirs want to liquidate and share cash, classic routes exist, such as court-authorized sale and division. The special scheme serves a different social purpose. It helps legitimate users, relatives or people with a genuine connection to the land, to become owners or long-lease holders, on the condition that they themselves will live on or farm the land. Courts can attach anti-speculation conditions, including time-limited bans on selling or renting out.

The first gatekeeper question is whether there is a real co-ownership community. If the land belongs to the government, there is no community to divide, so the special scheme does not apply. That is where the domain principle looms large. In islands like Saba and Statia, where wide stretches were never registered in the public books, judges have long recognized an unwritten rule that mirrors Suriname’s statute. If no one proves private ownership, the land is presumed to be government domain. That presumption flips the usual burden of proof, which is why officials often rely on it rather than the more limited article 5:24 Civil Code that would force government to show the absence of any private owner.

Registration matters. If an owner is recorded in the public registers, even an owner who died a century ago, the domain principle does not apply. That sharp line drives very different outcomes between registered and unregistered tracts, and it explains why much open, unregistered terrain defaults to government unless a claimant can prove a registered chain of title.

De Boer also underscores a hard truth about prescription. Using government land, grazing goats, or commissioning a survey brief does not make a user a possessor in the legal sense. It makes them a holder for government. Holders cannot acquire ownership by the passage of time. The Courtar v. Statia ruling, which involved roughly 110 hectares, confirms that principle, and the Supreme Court allowed it to stand. The only thing that regularly counts as an act of possession is registration in the public books. Old survey briefs, without registration, do not tilt the scales.

There are exceptions, and they prove the rule. In Cattle Plantation, Saba, the court treated very old notarial deeds as acts of possession. Two facts were decisive. Registration in the past had been practically difficult on Saba, and government expressly chose not to invoke the domain principle in that dispute. De Boer cautions that the outcome in that case cannot simply be copied elsewhere.

The essay lays out a practical path for policy. Where a family home sits on a modest plot, government should in principle refrain from raising the domain principle. That aligns with the long-running efforts by the Ministry of the Interior and the public bodies on Saba and Statia to resolve undivided land. Even then, users must meet the law’s tests. They must live lawfully on the island and have used the land for about ten years, except in special cases. Judges can limit the size awarded, especially where yards sprawl far beyond a house site, often capping the carve-out near one thousand square meters. Non-adjacent parcels will not be bundled for a single user. This is social legislation aimed at secure homes, not a vehicle for land aggregation.

A development plan is mandatory when asking a court to award title. Judges expect a proposal that fits the island’s planning framework, sets out infrastructure and building compliance, and shows how costs will be covered, including a note of any bank conversation where mortgage financing is expected after title is granted. Executive councils will be asked for their view and can point out defects, from leaking roofs to faulty sewer connections. Courts can attach conditions, including a resolutive clause that sends the land back to government if a recipient quickly sells or hands it to a third party.

De Boer’s bottom line is pragmatic. The undivided-estates scheme, in force since 2007 in the former Netherlands Antilles and since 2021 in Aruba, has proven flexible. Judges have used it to solve very old family puzzles on tracts large and small, registered and unregistered, and to balance individual equity with public order. The domain principle will continue to decide many open-land disputes in Saba and Statia, but where families can show long, lawful use of modest house plots and bring credible plans, the courts have the tools to convert that use into secure title, subject to safeguards that prevent speculation and keep development orderly.

‍