Illustrative photograph; not a location, property or incident discussed in this article. Photo: Jess Loiterton / Pexels (Pexels License).
A resort development can look ready for a brand agreement while the documents needed to deliver it remain at different stages. The developer may hold an option rather than the promised long lease. A bank may be willing to consider financing rather than committed to lend. The drawings in the commercial presentation may differ from those submitted for permission.
For a hotel brand or management company assessing a project in Aruba or Curaçao, the immediate question is whether the owner's development obligations are supported by the rights, approvals and funding actually available. Brand participation does not itself establish ownership of the site, responsibility for construction or authority to obtain permits. Those roles should be explicit in the transaction documents.
Three local disputes provide useful due-diligence lessons. They address different islands and legal questions, rather than a single Caribbean development regime.
Read what the bank has committed to do
The distinction between interest in financing and an approved loan was central to an Aruba land-allocation dispute. A developer sought an order requiring the government to enter into long-lease arrangements after granting an option. The option conditions required evidence of guaranteed financing. The developer argued, among other things, that other projects had been treated more favourably.
In its judgment of 10 February 2026, the Common Court of Justice compared the actual bank documents. A letter approving a loan, even subject to obtaining the long-lease rights, differed materially from letters indicating willingness to consider credit or eligibility for a loan. The court rejected the equal-treatment argument and affirmed the dismissal of the developer’s claim. Common Court of Justice, 10 February 2026, ECLI:NL:OGHACMB:2026:94, section 2.
The case followed an interim appellate judgment that had required further information about the comparator projects. The final judgment matters: relying only on that earlier stage would leave the reader with an unresolved equality issue that the court subsequently decided.
For transaction counsel, a bank letter should be assessed by its operative terms, conditions, expiry date and approval status. A financing representation should not merge an indicative term sheet, credit approval, signed facility and drawable funding into a single statement that the project is “financed”. The court’s decision does not establish that every conditional loan is inadequate; it shows why the particular conditions and level of commitment matter.
A practical closing schedule can distinguish land-right conditions, credit conditions and construction-disbursement conditions. If one depends on another, document the agreed sequence and who bears the risk if the sequence cannot be completed. Do not leave the development team to resolve that circular dependency after commercial deadlines become binding.
A pending application is not a substitute for the permitted design
In a Curaçao residential construction case, the applicant argued that a delay of more than four years between an application and its refusal justified reliance on eventual approval. The court rejected that argument. Time passing did not create a building permit, and the applicant could have used the administrative procedure to challenge the absence of a decision.
The court also examined the actual drawings against applicable rules on distances from boundaries, site coverage and height. It upheld the refusal and rejected the challenge to the associated enforcement decision. Curaçao Court of First Instance, 21 September 2020, ECLI:NL:OGEAC:2020:204, paragraphs 2–9.
This was a dwelling, not a hotel project. Its value for resort due diligence is the distinction between an application, an approval and the building being delivered. The numerical residential standards in that case should not be copied into a hotel feasibility study. The correct rules depend on the site, use, applicable planning instruments and current law.
Ask the architect and local advisers to reconcile three sets of documents: the approved drawings, the drawings attached to the construction contract and the design required by the brand. Identify changes to room counts, height, footprint, circulation, amenities and servicing areas. An apparently modest brand-standard change can require a fresh planning or permit assessment.
If an application remains undecided, record its procedural status and available remedies. “Submitted” should not be marked as “obtained” in the opening-readiness tracker. Nor should a contractor’s willingness to start work determine whether the legal prerequisites have been satisfied.
Survey the site and distinguish private rights from enforcement expectations
A Curaçao dispute decided on 25 June 2025 concerned construction extending across parcel boundaries. Before the court decided the urgent application, the encroachment onto the claimant’s parcel had been removed and the boundaries had been remeasured. The remaining requests to stop activity and prohibit entry were rejected because a continuing need for those orders had not been shown.
The claimant also sought action concerning construction on adjoining government land. On the facts, unlawful interference with its interests had not been sufficiently shown, and the government had investigated a recent enforcement request. The civil court rejected the urgent claim and referred to the available administrative route for an alleged failure to decide. Curaçao Court of First Instance, 25 June 2025, ECLI:NL:OGEAC:2025:153, paragraphs 4.1–4.4.
The judgment did not legalise encroachments or guarantee that government enforcement would follow a commercial timetable. It illustrates why title review needs a physical and procedural counterpart.
Before committing to an opening date, compare a current survey with access roads, parking, plant, drainage and proposed amenities. Identify which areas are owned, held under long lease, licensed, shared or merely used in practice. If a neighbouring structure is expected to disappear, establish the legal basis and realistic process instead of assuming that an enforcement complaint will clear the site in time.
Translate diligence findings into the deal
The useful output is a short list of conditions and responsibilities, not an undifferentiated collection of documents. For each material item, identify the responsible party, evidence of completion, deadline and consequence of failure.
Land rights may require a condition before effectiveness. A permit-dependent design change may require a revision to the opening timetable. Unresolved access can affect the construction plan, guest circulation and service delivery. Financing uncertainty may justify a different sequence for fees, guarantees and expenditure commitments. These are transaction-design choices to negotiate, rather than automatic remedies supplied by the three judgments.
The owner, operator, brand and lender need not have identical responsibilities. They do need an accurate shared description of what exists and what remains conditional. That discipline is particularly valuable when a regional team is reviewing a project remotely and local progress is being reported in commercial shorthand.
This article provides general information drawn from Aruba and Curaçao decisions. Each island’s land, planning and procedural rules must be assessed separately, with current advice on the particular site and transaction.
For related services, see ZL Attorneys’ contract law and Aruba pages. The applicable island law and local representation requirements must be assessed for each matter.
