Long lease (erfpacht) in Aruba: can the government impose rental restrictions mid-term?

Erfpacht is a property right, not a permit

Most residential building land in Aruba has been issued by the Country under erfpacht, a long lease that is a right in rem. The leaseholder in principle has all the rights of an owner, pays an annual ground rent (canon) and is bound by the conditions set out in the notarial deed of establishment and the general conditions it incorporates. Those conditions are registered in the public registers of the Land Registry (Kadaster).

In an erfpacht relationship the Country of Aruba acts as landowner and contracting party, not as an administrative authority issuing decisions. That distinction is decisive. A permit can be revoked or amended within the limits of the law; a property right, once established, cannot be altered by the Country at its own discretion.

Three ways to amend erfpacht conditions

The Civil Code of Aruba (BWA), like its Dutch counterpart, recognises three ways to change the content of an erfpacht right.

1. With the leaseholder's consent. Amending a right in rem requires a notarial deed and registration in the public registers (art. 3:98 in conjunction with 3:89 BWA). Without the leaseholder's signature no amendment comes into being.
2. Under an amendment clause already contained in the deed. Some erfpacht conditions give the landowner the power to periodically adjust certain elements, typically the ground rent. The Dutch Supreme Court has not regarded such a clause as unreasonably onerous per se, partly because erfpacht conditions form part of government land policy. But the power must actually be in the deed and must be exercised proportionately. Most Aruban residential deeds contain a designated-use clause (residential purposes) and a consent requirement for changing that use, but no general power to introduce new prohibitions.
3. By the court, under article 5:97 BWA. Only once twenty-five years have passed since establishment may the owner or the leaseholder ask the court to amend the erfpacht on the ground of unforeseen circumstances so serious that, by standards of reasonableness and fairness, unchanged continuation cannot be required. Courts apply this provision very restrictively, and it does not cover circumstances that were foreseeable at the time of establishment.

In addition, the Country of Aruba as contracting party is bound by the general principles of proper administration (art. 3:14 BWA). It may not use its private-law position as landowner to enforce a regime that it could not, or could only with safeguards, impose through public law.

What the government can do

That the deed cannot be amended unilaterally does not mean rentals are untouchable. The government has three other instruments.

• Public-law regulation. A national ordinance on vacation rentals, with registration, licensing, caps per area or amendments to the spatial development plan (ROPV), applies to everyone regardless of what the erfpacht deed says. This is the route the government is actually taking: in May 2026 the Minister of Economic Affairs announced a holistic legal framework for vacation rentals, and the Department of Economic Affairs prepared a mandatory registration system with a transition period running into early 2027. Such rules must satisfy article 1 of the First Protocol to the European Convention on Human Rights: a legitimate aim, a fair balance between the general interest and the individual burden, and proper transitional arrangements for existing cases.
• Enforcement of existing conditions. Where the deed prescribes residential use, the Country may argue that structural commercial vacation rental breaches that designation and claim performance or even forfeiture of the erfpacht (art. 5:87 BWA). That is not an amendment but an interpretation of the deed. Whether it succeeds depends on the wording of the conditions and on the fact that the Country has for years taken no action against rentals: tolerance can give rise to forfeiture of rights and legitimate expectations on the leaseholder's side.
• New conditions at natural moments. On new issuance of land, on re-issuance after the erfpacht term expires, and when granting consent for transfer or subdivision where the deed requires such consent (art. 5:91 BWA), the Country has freedom of contract and may set amended conditions.

What does this mean for you?

Obtain your erfpacht deed and the general conditions it declares applicable from the Land Registry and check three points: the designated-use clause, any amendment or consent clause, and the date of establishment (relevant to the twenty-five-year threshold and the transitional law of the new Civil Code). If the deed contains no amendment clause, a rental ban imposed unilaterally in the deed is not valid and you can resist it.

The real exposure for owners who rent out their homes lies not in the deed but in the announced public-law regulation. Anyone already renting should follow the registration and licensing requirements closely and assess in good time whether a transitional arrangement applies.

Do you want to know exactly what your erfpacht deed allows, or has the Country of Aruba asked you to accept new conditions? Glas & Glas Attorneys and Legal Consultancy will read your deed and advise you, in English, Dutch, Spanish or Papiamento.

This article contains general information and is not advice on a specific situation. No rights can be derived from its contents.

Sources

• Civil Code of Aruba (in force since 1 September 2021): art. 3:14, 3:89, 3:98, 5:87, 5:91 and 5:97 BWA
• First Protocol to the European Convention on Human Rights, article 1 (protection of property)
• Spatial Development Plan with Regulations (ROPV) Aruba
• Announcement by the Minister of Economic Affairs (May 2026) of a legal framework for vacation rentals and the registration system of the Department of Economic Affairs