Is it legally still possible to enter Plantation Bolivia? YES!
Why? Because there is the right of way (an easement).
- to enter Plantation Bolivia at the Lagun side and hike, bike or drive through Plantation Bolivia to leave at the Arawak side and vice versa is still possible;
- to enter Plantation Bolivia (at any site) and go to the east coast for e.g., fishing, diving, hiking, biking, camping is still possible;
- to enter Plantation Bolivia (at any site) to visit Lighthouse Spelonk is still possible.
What is a right of way?
The right of way is a right to come or go through another person’s property, in this case Plantation Bolivia. The right of way is an easement. This means that it is a burden with which a parcel of land (the serving property) for the benefit of another parcel of land (the prevailing property) is burdened. The owner of the serving property (Plantation Bolivia) must tolerate the use of his lot/tracks by the prevailing property (public parcels of land).
Because the right rests on a parcel of land (and is therefore property-related), the right continuesto exist when someone else becomes the owner of that parcel of land.
How does a right of way arise?
A right of way arises through the establishment of this right in a notarial deed or by prescription (in the case of Plantation Bolivia).
In the case of settlement, the plot owners have made agreements about e.g. the use of a tracks/roads. They record these agreements in a deed of establishment before a civil-law notary. The easement is ultimately established upon registration of this deed in the public registers.
A right of way can also arise through prescription, there are two forms of prescription, acquiring(a) or liberating(b) prescription.
a. Acquiring prescription (“verkrijgende verjaring”)
When there has been uninterrupted possession of the easement in good faith for more than ten years it is called acquiring prescription
Good faith means that the possessor thought, and was allowed to think, that he was authorized to use the tracks/roads. Acquiring prescription is not common. There is no question of good faith if it can be established by consulting the public registers that there is no right of way.
In many cases, good faith only exists when there are defects in an established right of way. For example, because it has been established by an unauthorized person.
b. Liberating prescription (“bevrijdende verjaring”) which is the case for Plantation Bolivia.
Liberating prescription is when there has been uninterrupted possession of the easement for more than twenty years. Plantation Bolivia has been used by the people of Bonaire for many generations
Whether there is a right of way created by prescription, it must be assessed to what extent there is “possession of a right of way”. In case law it has been determined that the possession or use must have taken place in a way that “pretends ownership of the tracks/roads”.
The people of Bonaire have always acted as if Plantation Bolivia was a public area, property of all of us, part of the cultural and natural inheritance of the people of Bonaire. They never had any doubt that they would not have free entrance.
It is still possible to enter Plantation Bolivia, because already many generations (over more than 20 years) have used the tracks/roads on Plantation. For example, to go fishing at the east coast or to travel through Plantation Bolivia to go from the North to the South and vice versa.
Civil Code BES:
Book 3, articles: 1, 80 paragraph 3, 99 paragraph 1, 105, 306
Book 5, articles: 72, 73