Case study
Benny and Cedrid are neighbours. Years ago they bought the adjacent lots 1 and 2 in the land parcellation plan “ Bon Biba” in Curaçao, with the dwelling houses under construction. The title to these lots was transferred to them.
Benny acquired his lot in 1990 from a person named Ancho and Cedrid acquired his lot from his son. The copies of the respective notarial deeds filed with the documents of the proceedings show that lot 2 measuring 1,040 m² in size, as described in certificate of measurement of the Land Registry Office dated 20 May 1988, number 376, was sold and transferred to Cedrid. Lot 1 measuring 860m² in size, as described in certificate of measurement of 20 May 1988, number 377, was sold and transferred to Benny. The lots owned by Cedrid and Benny are separated by a fence which had already been in place when Benny’s legal predecessor bought lot 1. The parties had initially assumed that the fence was built on the lot boundary. But when the Land Registry department carried out border demarcations it turned out that an excess area of 110 m² had been fenced off and Cedrid’s lot was short-measured by 110 m². The cause was that a wrong iron pipe had been applied as angular point on the front side of the lots; the iron pipe later installed by the Land Registry indicates the correct vertex. Benny started proceedings against Ancho and Cedrid requesting that Ancho be ordered, as yet, to actually deliver the missing piece of land to him and that it be decided that Cedrid shall give permission for the fence between lots 1 and 2 to be built on the farthest iron pipe recently placed by the Land Registry department.
General information
Under the first paragraph of article 3:84 of the New Civil Code of the Netherlands Antilles, the following is required for the transfer of a property:
1. transfer
2. effected by virtue of a valid title and
3. performed by a person/party who is entitled to dispose
of the property.
A distinction must be made between the concepts of “transfer and delivery”. “ Transferring” includes “ delivery” that is the transfer (delivery by a party having power of disposition by virtue of a valid title), resulting in the transfer of ownership.
“ Transferring” results in the transfer of title.
Whether “ delivery” results in “ transfer” is dependent on whether the other requirements for transfer ( a valid title and the power of disposition) have been satisfied.
Re 1
For a transfer to take effect a valid title is necessary. The delivery consists in the acts of the parties which are required for the transfer. The mode of delivery is dependent on the property to be delivered. A property subject to registration (in this case a lot with a dwelling house under construction) is delivered by a notarial deed followed by registration in the public registers for registered goods (3:89 New Civil Code of the Netherlands Antilles).
Re 2
The term “ title” as used in the first paragraph of 3:84 means: the legal relationship underlying and justifying the transfer. Normally, this legal relationship arises from an obligatory agreement to effect transfer. In the case under discussion, it is the purchase agreement between Ancho and Benny.
Re 3
In principle, the person who is entitled to the property, that is to say, the person to whose assets said property belongs, has the power of disposition with respect to said property. Delivery of property by a person lacking the power of disposition, does not in principle result in the transfer of said property. But subject to certain conditions, the law does provide protection with respect to property acquired from a person without the power of disposition. In the case under discussion Ancho was empowered to deliver his plot to Benny.
Supreme Court final ruling
Cedrid’s argument was that, since Ancho has not acquired and held possession of the strip of 110 m², and since he does not consider himself to be the owner thereof, Ancho cannot effect actual delivery to Benny. Nor was the will of Ancho and Benny based thereon, but on the sale and delivery of the plot the way it had actually been demarcated and fenced off many years before.
But this argument was not honoured by the Supreme Court. The reason was that in answering the question whether the delivery also entailed delivery of the ownership of the strip of land to Benny, the most important point is the will of the parties as expressed in the deed of 9 March 1993. And the mere circumstance that Ancho was not the owner of the strip of land, was no obstacle for him to transfer the entire lot of 860 m² to the ownership of Benny, as was provided in said deed.
Essence
Transfer entails delivery, namely the delivery (by the party possessing power of disposition under a valid title) resulting in the transfer of ownership.
Whatever is delivered in case of property subject to registration, must be stated clearly (requirement of determinability) in the notarial deed which is to be entered in the register of the Land Registry Office. In case it is stated in the notarial deed that a plot with an area of 860 m² will be transferred, the exact same area will be transferred.
As such, there is no need for Ancho to deliver more to Benny now that Benny has become owner of the entire plot of 860 m² ever since the entry into the public registers. Of importance to the court are the contents of the certificate of measurement. The certificate of measurement states an area of x m². In case this area of x m² is stated in the deed of transfer, then the buyer will also acquire an area of x m², in spite of the fact that, at the time of the transfer, the buyer and the seller thought that the area was smaller/larger. Hence, it is of importance, in case of any doubt as to the size of the area or in case the buyer does not want to run any risk, always to apply for a border demarcation/delineation at the Land Registry Office.
REAL RIGHT