Grantors of U.S. Virgin Islands real property executing a deed in a foreign country may face additional legal hurdles in conveying property. Although the basic steps remain the same as for a deed executed within the Territory, there are important differences that should be noted. These include: (i) the formalities that must be present during the execution in order for there to be a valid transfer of title; (ii) what persons/officers are eligible to take the acknowledge of the execution; (iii) the form of the certificate of acknowledgment; and (iv) how the authority of such person/office taking the acknowledgment is authenticated.
While Title 28, Section 42, subsection (a), Virgin Islands Code, provides that a deed within the U.S. Virgin Islands must be executed in the presence of two (2) witnesses who shall subscribe their names on it, subsection (b) of that Section provides that deeds in foreign countries conveying title to real property in the U.S. Virgin Islands should be executed in accordance with the laws of the foreign country. Although requirements of foreign countries may often be more relaxed than the two-witness requirement in the Territory, this is not always the case. Accordingly, it is critical to check the law of that country to ensure all requirements are met.
Although there is nothing to legally prevent a grantor from executing a deed in a foreign country and then returning to the U.S. Virgin Islands to acknowledge execution of the deed (i.e., the notarial act), as a practical matter however, the execution and acknowledgment are always done together. Accordingly, the next step is to ensure that the acknowledgment in the foreign country meets the requirements of the Uniform Acknowledgment Act, which was adopted in the U.S. Virgin Islands in 1981. Title 28, Section 82, Virgin Islands code sets forth a list of persons/officers eligible to take an acknowledgment in a foreign country, which includes judges, clerks, certain personnel of the U.S. Department of State, and, most importantly, notary publics authorized under the law of the foreign country. Just as if the deed was being executed in the U.S. Virgin Islands, the grantor shall appear before the officer and acknowledge that he executed the deed. The officer must then certify that: (i) the grantor appeared before him and acknowledged he executed the deed and (ii) that he knows or has satisfactory evidence that the grantor appearing before him is the same person that is the grantor in the deed. The officer will then prepare a written certification. Virgin Islands law allows the form of this written certification to be the same as that used for acknowledgments within the Virgin Islands or a form approved by the laws of the country in which the acknowledgment is taken. Finally, the authenticity of the officer taking the acknowledgment must be demonstrated. Depending on who the officer is (e.g., judge, notary, etc.), the requirements vary. This, however, is usually accomplished by the officer affixing his seal to the written acknowledgment attached to the deed or affixing his signature and listing his rank and title.
When an acknowledgment of a deed execution is taken in a country that is a signatory to the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (i.e., Apostile Convention), BoltNagi PC believes it is good practice for the grantor to have the authenticity of the notarial act certified in accordance with the Convention and have the Apostile certificate attached to the acknowledged deed.
Once a deed to U.S. Virgin Islands real property has been properly executed and acknowledged in a foreign country, the requirements for recording the deed in the Territory are the same as for those executed and acknowledged in the Territory. For all parcels of land (vs. condominiums and timeshare units), the Cadastral Section of the Tax Assessor’s Office must conduct a boundary attestation and certify the correctness of the legal description of the real property being conveyed by virtue of the deed A current tax clearance letter issued by the Office of the Tax Collector, certifying all ad valorem tax liabilites are current, must be attached to the deed. Unless eligible for an exception, the transfer tax must be paid and the stamps affixed. Documents transmitted to the Recorder of Deeds with proper recording fees are date-stamped when received and kept for processing. Upon completion, documents are returned to customers by mail or held for pick up. The complete process takes approximately one week.
The transfer tax stamps shall be affixed to deeds executed outside the U.S. Virgin Islands within thirty (30) days from the date of arrival within the Territory. Arrival date shall be endorsed on the document and the date verified by affidavit (Title 33, Section 127). The penalty for any document not stamped within the proper time is twice the stamp tax not to exceed $100 (Title 33, Section 129).
For more information about recording a deed executed in a foreign country, work with an experienced real estate attorney.
Steven K. Hardy is Chair of the BoltNagi Real Estate and Financial Services Practice Group. BoltNagi is a well-established and widely respected real estate law firm assisting clients regarding U.S. Virgin Islands real estate and real estate development.