Reader’s Letter: The Pelican at the Yacht Club (Part I)

POSTED: 03/15/11 12:03 PM

Seeing a pelican temporarily pausing its flight last week and landing at the parking lot by the Simpson Bay Yacht Club (S.B.Y.C) made me reflect on the symbolism of that moment. Obviously there are differences between the formerly known Pelican Resort and the Simpson Bay Yacht Club but fact is that they also have some common characteristics which are more than just noteworthy.

Difference: S.B.Y.C is a condominium resort, whereby the use rights of the condo units belong to individual owners, while “Pelican” is a time-share project whereby the use rights regarding the units are divided into time periods and as such attributed to individual “owners”.

Common: Both are so called shared ownership resorts (“SORS”) with serious problems.

Difference: Pelican’s problems have reached the public awareness and have caused many to publicly point out the unfairness and alleged illegalities, which have lead to parts of its problems having been addressed, with the help of the court and the government.

At SBYC, on the other hand only a handful of owners have (mainly privately) expressed their frustration with what they consider actions of serious mismanagement and illegality, which complaints have systematically been waved aside by the management with the consent of the majority of the owners.

Common: The great importance of S.O.Rs for St. Maarten’s economy and image as a law abiding country which appreciates and protects the investments of individuals and of the employees at such resorts.

The symbolism in mentioned landing of the pelican relates to the following two issues.

One is that it may be helpful to place the “Pelican” in the wider context of the S.O.Rs.

Two is that an effort should be made to bring the S.B.Y.C issue also to the public in the hope that the public attention will motivate the parties involved to address and correct the serious problems there.

Regarding the first observation we can remark the following.

Both the “Pelican” as the S.B.Y.C are S.O.Rs in which more people participate with two kinds of input, rights and obligations (“IROS”). Those I.R.Os are exclusively of each individual owner with regards to his unit and those of the individual owner together with the other owners regarding the common areas of the specific building and land of which their unit forms a part.

Two of the main challenges of an SOR are: a) – to establish a legal set-up that reflects a balance between the I.R.Os of those two kinds of I.R.Os and b) – to maintain said balance in the execution of said set-up.

By us the base for such a legal set-up is most completely provided for by the articles in our Civil Code regarding condominiums.

Central in the legal structure of condominiums stands the Association of Condo Owners (ACO), which by law is in charge of attending to the interests of the individual owners, particularly the providing of common services directly related to a specific condominium type building and land.

Said basic legal set-up can also be used as a point of departure for the elaboration in the specific set-ups for the time-share and other types of S.O.Rs and our Civil Code indeed provides an opening for that. It must be acknowledged however that said set-up by itself is rather complex and requires the necessary efforts for the stakeholders in question to properly understand it and to assure its functioning to the satisfaction of all of them and of the observing public.

Mentioned complexity is also intensified by the fact that often, for a variety of reasons, the primary responsibility for managing the common areas of the building(s) and providing for its common services is, contrary to the intentions of the law, not in the hands of the A.C.O., but assumed by a management company which is associated with the original owner/developer company of the land and building in question, often, again for a variety of reasons, without the owners being able to provide proper supervision over said management, with the consequence that mentioned balance becomes distorted.

While some S.O.Rs, have been attending to their tasks in an exemplary manner, some others have been failing to meet the expectations, sometimes with very grave consequences as we have noticed with Pelican and will see in the next article with regards to S.B.Y.C.

Elco Rosario

 

 

 

 

 

 

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