Purchasing U.S. Virgin Islands Real Estate – What to do about encroachments?

You have decided to buy property in the United States Virgin Islands, you have requested title insurance, and a surveyor has conducted a survey of the property. However, the survey map indicates an encroachment. What do you do now?

 What is Title Insurance?

 After signing a contract of sale for property in the U.S. Virgin Islands, it is advisable to seek title insurance on the property. Title insurance for the buyer is known as an Owner’s Policy, and will protect you as the new owner in the amount of the real estate purchase price for any covered title issue that may arise from the property. A title insurance company will also offer a lender’s policy, which will insure a bank or financial institution on the amount of the mortgage on the property. In the U.S. Virgin Islands, a lender’s policy is required at a minimum when there is a mortgage on the property. [1]

What is the significance of a survey map?

 A title company will request an American Land Title Association Survey, commonly known as an ALTA survey, to be prepared before issuing the owner’s policy. The survey includes the location of boundary lines, the main building and any improvements, other structures, utility lines, trails, roads, paths, and any easements recorded against the property. The ALTA survey will also indicate any encroachments over the boundary lines.

What is an Encroachment?

 An encroachment is when there are two pieces of property that share a common boundary and a structure of one property crosses over the boundary line of the other and the owner of the encroaching structure is violating the property rights of the neighboring property. An encroachment, because it violates the property rights of the neighboring property, can bring about a cause of action for trespass, which can result in damages. Encroachments are common in St. Thomas, St. John, and St. Croix because the boundary lines are indicated by bound posts that, over time, can be lost or slightly moved. Common encroachments in the U.S. Virgin Islands are retaining walls, fences, and septic tanks, but other encroachments may include driveways or even main building structures. 

Resolving the Encroachment

 When there is an encroachment indicated on the ALTA survey the title company will take exception to this encroachment and it will not be covered in the Owner’s Policy. This means that any cost resulting from the encroachment will not be covered by the title company. There are several options that you may take when deciding how to proceed with an encroachment. Understanding the encroachment and its magnitude will often shape how you approach resolving the issue. The encroachment may be large enough that it significantly affects property or it could be an encroachment of a couple of inches. Additionally, it may be that the property you are purchasing is being encroached upon by another property and you want to make sure your possessory rights to the relevant property are protected.  Or, it may be the case that your property is encroaching on an adjacent piece of parcel and you want to make sure that this does not become cause for someone to file a lawsuit against you as the property owner of the encroaching property.  A few options to resolve this potential property dispute are as follows:

 Entering Into a Binding Easement Agreement

An easement is the limited right to use the land in possession of another for a specific purpose; the holder of the easement is able to use the property for that specific purpose, but has no right to possession of the land. If the property you are purchasing is being encroached upon you can have an easement drafted for the encroachment. For instance, if the neighboring property has a fence that is encroaching on your property, an easement may be drafted for the specific purpose of the fence remaining on your property. The owner of the fence will only be able to use your property by way of the easement for that specific purpose. If the easement is drafted properly, the easement will be terminated once the fence is taken down. If you are purchasing property that is encroaching on the property owned by another, it is always advisable to seek an easement from the owner of the neighboring property before purchasing the property.  In some instances, the owner of the neighboring property may be willing to give you an easement; however, it is not uncommon for easements to be bought, sold, or bargained for. In the U.S. Virgin Islands, easements should be recorded in the Recorder of Deeds Office and should satisfy all requirements of the VI recording statute. These requirements include that the easement should be signed by all parties to the easement, witnessed by two uninterested parties, and notarized.

 Entering into a Land Swap Agreement

 A land swap agreement would be an agreement to deed the encroaching property to the neighboring property in exchange for a portion of the neighboring property. Generally the land exchanged by the two property owners is for equivalent acreage or square feet. A proper survey of the property will be required to accurately describe the exchanged property for recording purposes. Additionally, you would want to employ a U.S. Virgin Islands attorney to adequately draft warranty deeds and to review U.S. Virgin Islands zoning statutes to make sure the exchange of property is proper.

Accepting the Encroachment/Quiet Title 

Another option is to legally remove the encroachment. As mentioned above, often times the neighboring property owners are unaware that an encroachment exists and, therefore, may be willing to remove the encroachment. If the neighboring property owner is unwilling to remove the encroachment and efforts towards an easement have failed, you may take the property subject to it or adjust the sales price of the purchase to account for the encroachment.  Once you purchase the property you may attempt to resolve the encroachment by seeking legal remedies.  A quiet title action may be brought in order for the courts to determine your property rights. In order to bring the action you would have to show that you have the right to possess the property in question and that the neighboring property owner is wrongfully in possession of the property. You should also be aware that the statute of limitations on an action for quiet title is 20 years.[2] If you intend to bring a claim for quiet title, make sure you seek a U.S. Virgin Islands attorney experienced in such matters to ensure the case is handled properly and timely.

It is important to remember each real estate purchase/sale is different and each buyer and seller may have different objectives.  Consulting an attorney who is competent in property law, real estate, and easements is always recommended.

[1]westindiestitle.com

[2]Andrews v. Nathaniel, 759/1994, 2000 WL 221937 (Terr. V.I. Jan. 26, 2000)

 

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