IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
JESSICA RICHARDS DALEY )
) CIVIL NO ST 19 CV 533
Plaintiff )
) ACTION FOR FORCIBLE
vs ) ENTRY AND DETAINER
)
CRYSTAL JOY GEORGE ) Cite as 2020 VI Super 031 U
)
Defendant )
Appearances
JOSEPH CAINES ESQ
For PlaintiffJesszca Richards Daley
CAROL A RICH ESQ
Dudley Rich LLP
For Defendant Crystal Joy Geo; ge
MEMORANDUM OPINION
CARR, H , Magistrate Judge
fill THIS FORCIBLE ENTRY AND DETAINER MATTER was heard by Henry V Can
111, Magistrate Judge of the Superior Court of the Virgin Islands, on October 4, 2019 Plaintiff
Jessica Richaids Daley was present and represented by counsel Joseph Caines Esq Defendant
Crystal Joy Ge01ge was piesent and represented by counsel Carol Rich Esq Defendant filed a
Motion to Dismiss on October 1, 2019 At trial the Court took the Motion under advisement and
allowed Plaintiff to present evidence During trial, Plaintiff made an oral Motion to Dismiss Upon
consideration of the parties testimony and of the exhibits duly admitted into evidence, the Court
shall dismiss this matter without prejudice
I Plaintiff has not Proved Standing
112 The first issue concerning the Court in this case is whether Plaintiff has proved standing to
bring this matter in an FED proceeding The Court finds that Plaintiff has not met such a burden
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113 Title 28, § 782(a) of the Virgin Islands Code provides for the right of a property owner to
recover possession of his or her premises
When a forcible entry is made upon any premises, or when an entry is made in a
peaceable manner and the possession is held by force, the person entitled to the
premises may maintain an action to recover the possession thereof
114 Under the statute, an owner is entitled to maintain an action to recover possession of
property held by another by force 1 A Plaintiff in an FED matter must therefore have an
ownership right to the property in question in order to have the authority to bring such an action
and recover possession A non owner cannot rightfully recover possession of property to which
he is not entitled
115 In the present matter, the Court finds that ownership of the property in question does not
lie with Plaintiff 2 The disputed property is Gift & Regenback 87 3 also known as B C Gift &
Regenback, Nos 13 & 14 Cruz Bay Quarter, St John, U S Virgin Islands In Defendant s
Memorandum in Support of Motion to Dismiss, filed on October 1, 2019, she included a copy of
the final adjudication of the estate of one Estella Stagger (Probate No ST 98 PB 21) Ms Stagger
was the grandmother of Plaintiff and mother of Plaintiff 5 mother, Cecile Richards The
adjudication of Ms Stagger s estate, dated April 22, 2009, states that Ms Stagger died intestate,
leaving behind five children and heirs at law Noel Boynes, Avilda Matthias, Elsie Roberts, Carl
Powell, and Cecile Richards 3 The adjudication includes, among descriptions of the real property
belonging to the estate, the property central to this case,4 and divides interest in the property among
Ms Stagger s five children, including Plaintiff’s mother, in equal portions 5
lBarnesv Webe/ 50VI 167 171 172 (Super Ct 2008) (emphasis added)
7 Plaintiff filed this case via Power of Attorney granted her by her mother Cecile Richards, by written instrument on
June 1, 1998 and again on September 19, 2019 It is Cecile Richards right of ownership, rather than Plaintiff's that
Plaintiff has the burden to prove, and which she has failed to demonstrate
3 In the Matter ofthe Estate ofEstella Staggel deceased Probate No ST 98 PB 21 Adj 11 3
4 Id at 11 4 n 4 citing n 3 Decedent acquired title to said parcel by virtue of the Last Will and Testament of William
Stagger, Sr , (decedent s father) dated April 13 1968 the Adjudication thereof entered on March 13, 2007 in the
Superior Court of the Virgin Islands in the Estate of William Stagger SI deceased, Probate No ST 02 PB 20; the
Adjudication entered on February 19 1992 in the Territorial Court of the Virgin Islands in the Estate of William
Stagger deceased Probate No 2/ 1986 (decedent s brother); the Partition Deed dated September 3rd, 1971 between
Ethlyn Miles William Stagger [Jr ] Evelyn Wynn Estella Stagger Ina V Lee and Beryl Byard' the Exchange Deed
dated March 14 1974 between Ethlyn Miles and William Stagger [Jr] and the Deed of Gift dated September 25
1969 between Catherine Stagger Christian (decedent s aunt) as Grantor and Estella Stagger, Ethlyn Miles, William
Stagger Beryl Byard, Evelyn Wynn and Ina V Lee as Grantees ’
5 Staggel Adj 4 5
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116 Therefore, upon the closing of Ms Stagger s estate, Plaintiff’s mother, Cecile Richards,
was granted shared ownership of Gift & Regenback 87 3 equally with her four siblings as tenants
in common 6 As a tenant in common, Ms Richards has the right to
use and enjoy the entire property to the fullest extent consistent with the ordinary
manner of deriving profits from property of like character [She] may grant to other
persons freely, and without the necessity of consent of [her] co tenant, [her] interest
in the property and whatever rights [s]he enjoys 7
1]7 While any tenant in common can grant a third party a right of possession in a property, no
tenant in common has the right to unilaterally oust a tenant who has been granted possession by a
fellow tenant in common Without evidence establishing that co tenants in common have ‘ entered
into any agreement which limits the possessory rights” of certain co tenants to a property, any co
tenant may allow an outside party a possessory right to the property 8 Thus, if any one of Ms
Richards siblings and co tenants is still allowing Defendant to retain possession of the property,
Ms Richards has no right to oust Defendant
1]8 In order to satisfy the burden of proof of ownership Plaintiff provided at trial Affidavits
from certain co tenants and heirs stating that, before probate commenced in the Estate of Estella
Stagger, all five of Ms Stagger 5 children and heirs agreed that all rights and interest in Gift &
Regenback 87 3 would be transferred to Cecile Richards, making her sole owner of the property
Plaintiff also provided a quitclaim deed purporting to prove said transfer
119 The Supreme Court of the Virgin Islands has addressed the requirements of a valid Inter
wvos transfer of real property
[U]nder Virgin Islands law a person may transfer ownership of real property
during his or her lifetime ‘by a deed of conveyance or other instrument in writing’
that is ‘signed by the person’ doing the transfer or his agent ‘and executed with
such formalities as are required by law 28 V I C § 241(a)(2) Chapter 3 of title 28
sets forth the ‘formalities required by law for the execution of a deed Within the
Virgin Islands, which are that the deed be ‘executed in the presence of two
witnesses, who shall subscribe their names to the same as such, 28 V I C § 42(a)
and that, if the person signing the deed is the one making the transfer, that the person
‘be[ ] of lawful age ”’9
6 ‘Every conveyance or devise of lands or an interest therein made to two or more persons other than to executors
and trustees as such, shall create a tenancy in common in such estate unless it is expressly declared in the conveyance
or devise that the grantees or devisees shall take the land as joint tenants 28 V I C §7(b)
7 Phaue v James 21 VI 261 262 (VI Super Ct 1985) (citing Rayomel Inc v Polson
400 F 2d 909 (9th Cir
1968))
8 Phat) e at 262
9 Harveyv Christophe) 55VI 565 574 (VI 2011) see alsoS&SSerwces Inc v Chapman 40VI 320 324
35
F Supp 2d 459 462 (D V I 1999) (declaring the requirement that the deed be signed by a conveyer of lawful age or
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1110 At trial, counsel for Defendant observed that Plaintiff’s quitclaim deed purporting to prove
a valid transfer of property to Cecile Richards from her siblings appeared to have multiple
deficiencies First, it was not signed by all of the grantors Second, it was an unrecorded document
from 2013, four years after the closing of Ms Stagger s estate Finally, the only person who
appeared before the notary was Plaintiff none of the grantors appeared, nor did the two witnesses
required under Title 28 The lack of witnesses alone would have rendered the deed invalid under
Virgin Islands law 10 Recognizing the deficiencies of the quitclaim deed, counsel for Plaintiff
withdrew the deed from evidence
1111 The Affidavits, meanwhile, were also insufficient to prove that all co tenants had agreed
to transfer their property rights to Cecile Richards While three of the four documents were signed
by actual co tenants Noel Boynes, Elsoe Roberts, and Carl Powell the fourth was not written or
signed by the final co tenant, Avilda Matthias but rather by her daughter, Monique Matthias
Plaintiff presented no proof at trial that Monique Matthias has any title in the property in question
While counsel for Plaintiff claimed that Monique Matthias is the administratrix of her mother s
estate the Court has found no evidence that the estate of Avilda Matthias has yet been entered into
probate Thus, an Affidavit from Monique Matthias cannot prove that Avilda Matthias, one of the
co tenants of Gift & Regenback 87 3, ever granted her right to the property to Cecile Richards,
nor can the Affidavit itself grant that right Neither can Monique Matthias, on behalf of her mother,
declare whether her mother would have wanted Defendant to remain on or be removed from the
property Therefore, without proof that either (1) Cecile Richards owns Gift & Regenback 87 3
outright, rather than as a co tenant, or (2) proof that all other co tenants agree to the removal of
Defendant from the property, Cecile Richards has no standing to bring an FED proceeding against
Defendant, nor can Plaintiff do so on her behalf
II Termination of a Tenancy at Will Requires Three Months’ Notice to Quit
1112 The next issue before the Court is whether the Notice to Quit that Plaintiff served upon
Defendant provided Defendant with sufficient notice as required in a tenancy at will relationship
A tenancy at will is defined by the Restatement (Second) of Property as a landlord tenant
relationship created to endure only so long as both the landlord and the tenant desire ” ‘ Where
the parties enter into a lease of no stated duration and no periodic rent is reserved or paid, a tenancy
his agent and that it be executed in the presence of two witnesses as the formalities required to execute a valid deed
within the Virgin Islands)
'0 Alexander v Alexander, 65 VI 372 384 (VI 2016) [T]he original deed was defective to convey title of the
Property due to the lack of a second witness's signature on the deed
'1 Restatement (Second) of Property Land & Ten § 1 6 (1977)
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at will is presumed "2 Title 28, § 752 of the Virgin Islands Code governs the termination of estates
at will
All estates at will or by sufferance may be terminated by either party, by three
months' notice in writing given by the other party
1113 At trial, the Court questioned Plaintiff’s counsel about the nature of Defendant’s tenancy
and found that Defendant had occupied Gift & Regenback 87 3 for at least six years ‘3 She moved
onto the property with her husband, Jesse Richards, Jr , who was also the brother of Plaintiff and
the son of Cecile Richards The couple and their three young children lived on the property at the
will and with the consent of at least some members of Plaintiff’s family, and did so peacefully for
the duration of Mr Richards Jr s life After Mr Richards, Jr passed away in 2016, Defendant
and her children continued to reside on the property until the present time Both parties
acknowledge that there was never any lease involved and neither the Defendant nor her late
husband ever paid any rent on the property The Court finds that the duration of Defendant’s stay,
combined with the lack of rent or any written instrument fixing terms of the tenancy, makes this a
case of tenancy at will
1114 As observed above, a tenancy at will requires a three months written notice of termination
in order to proceed with lawful eviction However Plaintiffs Notice to Quit was served on
Defendant on February 27 2019 and ordered Defendant to vacate the property by April 30 2019
Thus, the Notice to Quit was deficient, as it gave Defendant only two months to vacate the
property, rather than the full three months required in a tenancy at will Even if there were no
other problems with Plaintiffs case, it could not proceed due to such a deficiency If Plaintiff
wishes to bring this case before the Court again, she must first serve Defendant with a proper three
months Notice to Quit
III Whether the Court is ousted from exercising FED jurisdiction
1115 The final issue concerning the Court is whether Defendant s potential equitable interest in
the property or other complicating features of this matter divest this Court of jurisdiction to hear
the matter While Defendant addressed this issue in her Memorandum in Support of Motion to
Dismiss, Plaintiff made an oral Motion to Dismiss at trial before the Court was able consider this
question from the bench However, as the issue would have arisen had the matter proceeded to its
conclusion, the Court will address the potential problems this case would face on this issue
‘7 Restatement (Second) of Property Land & Ten § 1 6 Comment b (1977) See also Tenancy at Will, BLACK S
LAW DICTIONARY (9‘h ed 2009) (Defines a tenancy at will as [a] tenancy in which the tenant holds possession
with the landlord s consent but without fixed terms (as for duration or rent) specif , a tenancy that is terminable at the
will of either the transferor or the transferee and that has no designated period of duration )
‘3 While the parties disagreed on how long Defendant had resided on the property, the consensus was that it had been
for a period of at least six years
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1116 The purpose of the FED statute is to provide a mechanism to allow a landlord to regain
peacefiil possession of property in a simple and speedy process in place of the landlord 5 often
violent use of self help 14 It is a summary proceeding in derogation of the common law and,
therefore, its provisions must be strictly construed ‘5
1117 The FED procedures are much shorter and simpler than the regular civil process The filing
of motions is rare and limited; when they are filed, they generally only question whether the court
has sufficient authority to exercise FED jurisdiction Because of the shorter time limits regarding
when an FED summons must be served and the case heard, the filing of discovery is also rare 16
The only relief that a court can grant is restitution of the premises No other action, such as an
action for debt for nonpayment of rent, can be joined in an FED action ‘7 Because of the summary
nature of FED proceedings, the issues that the court can hear are severely abridged
1118 A landlord can set forth a prima facie case of FED jurisdiction if she can prove that there
is an undisputed oral or written lease agreement, and rent is due and owing thereon ’18 However,
FED jurisdiction
does not extend to (a) an adjudication of title or (b) the right to possession nor can
the justice adjudicate a right of possession that depends on an equitable interest in
the premises or inquire into equitable rights and give relief to which the party might
be entitled in equity '9
1119 An FED action will not lie where title to the premises is in question or where there is
proved to the Court a bona fide question of the existence of a lease at law or in equity, which has
not yet expired 20 Additionally,
[t]he trial court should hear evidence until it is able to determine, based on the
evidence, whether [the tenant] has raised a facially bona fide and good faith defense
to [the landlord's] claim for possession If the trial court determines that there is
‘4 CML Inc v Dzmagan 904 F 2d 189 190 191 (3d Cir 1990) The Virgin Islands Code provides an action for
forcible entry and detainer as a peaceful alternative to the often violent consequences of property owners exercising
their right of self help (citation omitted) In exchange for revoking their right of repossession by force, the statute
provides a simple summary proceeding, with time requirements substantially shorter than those provided in ordinary
civil actions and with the issues sharply restricted In such a summary proceeding a property owner under certain
specified circumstances can quickly receive a judicial declaration of his right of occupancy and an order directing the
marshal to remove the defendant and restore possession to the property owner
'5 Intel Cal COIp v Dlscozmt Car Rental
21 VI 157, 158 (VI Super Ct 1984) Citing Snare v Christian
18 VI
581 586 (D VI 1981)
‘6 Upon the filing of the complaint a summons shall be served and returned within 3 days, requiring the defendant
to appear within 3 days after service thereof and show cause why a judgment of dispossession should not be entered
against him 28 V I C §785
‘7 See Super Ct R 37
‘8 Intel Car at 159
‘9 Id at 158
0 Id at 159
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insufficient evidence to support such a defense, it should proceed with the FED
summary proceeding If the trial court determines that [the tenant] has presented
sufficient evidence of a facially bona fide and good faith claim of right to
possession of the premises, the court should dismiss the matter, and [the landlord]
may thereafter file an ordinary civil action 2’
1120 The court is duty bound to proceed with the evidence until it appears that the question
involved is in fact one of title or a complicated case of the right to possession 22 As soon as a
defendant in possession in an FED action raises a colorable defense requiring construction of an
agreement between the property owner and the party in possession, an FED action will not lie ’ 23
1121 The Supreme Court of the Virgin Islands has used the terms bona fide and good faith
claim or colorable defense in FED cases interchangeably 2* Good faith means a state of
mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one s duty or obligation, (3)
observance of reasonable commercial standards, or (4) absence of intent to defraud or to seek
unconscionable advantage 25 A colorable defense is a claim that is legitimate and that may
reasonably be asserted, given the facts presented and the current law (or a reasonable and logical
extension or modification of the current law) ’26 While courts have not explicitly defined the term
colorable claim in an FED setting, they have addressed its definition in other contexts 27 The
threshold of establishing a colorable defense is low,28 and a defendant raising a colorable defense
can stop an FED proceeding in its tracks As soon as a defendant in possession in an FED action
7' Vrrgrn Islands Port Author 11y v Joseph 49 V I 424, 431 (V I 1989) See also C ML Inc v Dunagan 904 F 2d
189 190 191 (3d Cir 1990)
27 Inter Car szrpr a at 158 159
3 Barnes v Weber 50VI 167 172 (VI Super Ct 2008)
74 In Joseph supra at 430 ‘We do find merit, however in [the landlord s] final assertion that the trial court should
have heard evidence in the FED action until it determined whether [the tenant s] defenses were bona fide or colorable ’
See also Barnes v Weber 50 V I 167, 175 (VI Super Ct 2008) ( The Defendants have sufficiently shown through
the facts before the Court that title to the premises is in question and that there is a bonafide question of the existence
of a lease at law or in equity that has not expired (emphasis added) (citation omitted) Defendants have raised a
color able defense which requires the construction of the agreement between them and the property owner, these issues
cannot be sorted out in an FED proceeding (emphasis added))
73 Goodfarth BLACK 3 LAW DICTIONARY (9th ed 2009)
’6 Color able defense, BLACK 8 LAW DICTIONARY (9"‘ ed 2009)
’7 See e g Gar rm v AMP Inc ,
94 Fed Appx 913 917 (3d Cir 2004) (stating that the concept ofa colorable claim
necessarily encompasses situations in which the requester has a reasonable basis for believing that he or she has a
meritorious claim but is in fact mistaken ) (citing Danrels v Thomas & Betrs Corp, 263 F 3d 66 79 (3d Cir
2001)) Rohn & Carpenter LLC v Cameron
2011 WL 3687626 (D VI Aug 22 2011) (stating that a claim is
considered ‘colorable as long as it is not wholly insubstantial and frivolous ) (citing Batoflv State Farm Ins Co ,
977 F 2d 848 851 (3d Cir 1992))
8 Green v Fornarro 486 F 3d 100 106 (3d Cir 2007)
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raises a colorable defense requiring construction of an agreement between the property owner and
the party in possession, an FED action will not lie 29
1122 In this matter, Defendant may have the colorable defense of an equitable interest in the
property in question Her Memorandum in Support of Motion to Dismiss claims that Defendant
and her husband, Plaintiff’s brother, invested tens of thousands of dollars constructing a home for
their family on the property and that Defendant herself invested thousands more making repairs to
the property after the 2017 hurricanes A claim of equitable interest under such facts might well
constitute a legitimate, reasonable, and good faith, or colorable, defense If the trial in this case
had not been cut short, and the Court had been able to hear Defendant s testimony and evidence
and determined that such a good faith claim existed, it would have been required to dismiss the
rrratter for lack of subject matter jurisdiction, after which Plaintiff would have had the right to file
an ordinary civil action 30 As it is, the Court never reached such a junction, but it wants to impress
upon Plaintiff the fact that, due to the many complexities of this case and the many limitations of
FED proceedings, she might well be better served in bringing this matter before the regular civil
division, rather than before this Court, if she so chooses to again file a case against Defendant
1123 For the aforementioned reasons, the Court finds that the Plaintiff has not put forth a prima
facie case under the FED statute Accordingly, it is hereby
ORDERED that this matter is DISMISSED WITHOUT PREJUDICE and it is further
ORDERED that a copy of this Order shall be directed to cou sel of r c d
DATED February I; I 2020 fig \féwfi
HENRY V CARR III
Magistrate Judge of the Superior Court
of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of theform
By W
DONNA D DONOVAN
Senior Deputy Clerki/42/£020
29 Estate ofThomas Mall Inc v Tenltm 1a] Com! 0f VII gm Islands 923 F 2d 258 264 (3d Cir 1991)
30 See Joseph at 431