The friendly island that wasn’t: TOCA is ready for another day in court!

Dear Editor,

  Our first visit to this popular Caribbean island, which comprises both French and Dutch island territories, was so thrilling, with a vividly gorgeous blue ocean and quaint lovely towns! The beautiful beaches, the warm seas, the elegant and delicious cuisine, and the lively atmosphere were so enchanting. My husband and I fell in love with the tropical rhythms and the spirit of the “Friendly Island”. However, as eager as we were to participate in future ventures as property owners, so we could return more often, we discovered that we had not only been deceived, but our timeshare property would eventually be denied to us.

  We had initially been deceived by Endless Vacations, the company charged with selling these timeshares, since one of my opening questions was, “What would happen if this property would face bankruptcy?” The agents closing the sale knew the answer, that the Caravanserai timeshares and the hotel were in the throes of bankruptcy, but they failed to tell us the truth!

  It is well known on the island and internationally that ourselves, and fellow timeshare owners for the original Caravanserai/Alegria combination hotel and timeshare located near the desirable Maho Beach, had our valid lease agreements swept away when they were embroiled in a bitter and sudden bankruptcy about six years ago. The new owner, American Ray Sidhom, along with his firm Alegria Real Estate BV, sent a “welcome” letter by advising all timeshare owners that their lease agreements were now null and void.

  There are few words to describe how extremely shocking it was to find out through an

e-mailed letter on September 29, 2014, that our lease agreements, owned by about 2,000 owners from all around the world were being summarily tossed away! Many of us, recovering from our shock, formed TOCA, Timeshare Owners of Caravanserai Association and hired one of the finest law firms on the island, Lexwell Attorneys at Law. Subsequently, we went to the courts, making great gains by winning on two counts: the merits of the case in the Court of First Instance on August 23, 2016, and in the Court of Appeals, which upheld the lower court’s decision in 2018.

  However, the lawyers representing Mr. Sidhom and formerly the resort called Caravanserai, once changed to Alegria by Mr. Sidhom, and now renamed The Morgan, decided to take their case to the Dutch Supreme Court in The Hague, in The Netherlands. The lawyers for Alegria presented their appeal based on just one Sint Maarten ordinance, SMCC 7:226, which only acknowledges a transfer of timeshare obligations in a sale when the holder of the long-lease and the timeshare lessor are one and the same. This was not the case with TOCA’s lease agreements. Endless Vacations, NV, arranged the lease agreements.

  Based on this strict and narrow interpretation of the aforementioned code, the Supreme Court had no other choice but to return the matter back to the Court of Appeals, since there remained several other timeshare ordinances, advanced by TOCA which needed to be addressed concerning reasonable and fair protection for Sint Maarten’s timeshare owners.

  We have yet another hurdle to overcome, but we are still determined to have our next day in court, whether our case eventually returns to The Netherlands, at The Hague’s Dutch Supreme Court. This decision, which is yet to be determined after more than six long years, will not only impact our case, but will have massive reverberations throughout Sint Maarten as to whether the island’s hospitality industry, including timeshares, and laws of property ownership should and does have ironclad protection for the rights of visitors coming to this island. The ultimate decision with our case will decide if investing in this island is worth the risk, which in TOCA’s case, concerns matters about the property owner’s right of access to even enter our personally-owned timeshare property.

  You might believe that this high-profile court case ought to have led to better protection for timeshare owners in Dutch Sint Maarten. Sadly, a Draft Timeshare Ordinance promising to offer even more protection for future timeshare owners has yet to be ratified. The Sint Maarten government is not rushing in to provide further binding protection for current timeshare owners.

  Sint Maarten is facing a prime litigation crossroads, which will most likely spread throughout the timeshare industry if these timeshare agreements are not guaranteed ownership safeguards. Will the government ramp up a consumer protection ordinance to protect timeshare owners who have invested in a vacation timeshare in Sint Maarten, or will the government just keep shying away from an ever-pressing demand to resolve this issue?            Although this island has heavily depended on tourism in all aspects of their businesses, a failure to guarantee visitors and investors to this island their legal rights to timeshare ownership will be another serious blow to an already threatened economy in the aftermath of Hurricane Irma and the COVID-19 pandemic.

  Hopefully, our TOCA membership will eventually have a favourable answer from the Dutch Court of Appeals after a partial rendering of the decision by the Dutch Supreme Court at The Hague moved our case back to the Appellate Court. Will this also be a victory for the “Friendly Island”, and an optimistic decision for the future of Sint Maarten’s economy? Even on a beautiful Caribbean island, renowned for offering weary travellers gorgeous beach views, great underwater adventures, supremely azure seas, and fabulous entertainment, our day in court may well determine how this island will continue to welcome international travellers, especially those who choose to invest in Sint Maarten’s economy.

Nancy Jennis Olds

Henderson, Nevada