Forcible Entry and Detainer (“FED”) actions are governed by title 28, sections 751 through 794 of the Virgin Islands Code. Virgin Islands Port Authority v. Joseph, 2008 WL 2329281 (V.I.,2008). These sections provide for summary adjudication of a limited class of simple eviction proceedings. As described by the Third Circuit Court of Appeals in C.M.L., Inc. v. Dunagan:
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. Suarez v. Christian, 19 V.I. 1586 (D.V.I.1981). 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. Where a tenant is retaining possession by force, relief is available in a summary FED proceeding only if there “is an undisputed oral or written lease agreement, and rent is due and owing thereon; or [t]here is an undisputed oral or written lease which has expired.” Conversely, “a FED cause of action will not lie where [t]itle to the premises is in question; or [w]here there is proved to the Court to exist a bona fide question of the existence of a lease at law or in equity, which has not yet expired.” Inter Car Corp. v. Discount Car Rental, 21 V.I. 157, 159 (Terr.Ct.1984).
Id. (citing, C.M.L., Inc. v. Dunagan, 904 F.2d 189, 190-91 (3d Cir.1990)) (paragraph indention omitted).
However, in such summary proceedings, the issues are restricted to disputes that do not raise a colorable claim of right under a lease agreement, or issues of damages, or for collection of unpaid rents. Floyd v. Hoheb, 1997 WL 815373 (Terr.V.I.,1997) (citing, Estate Thomas Mall, Inc. v. Territorial Court, 923 F.2d 258 (3d Cir.1991), cert. denied, 502 U.S. 808, 112 S.Ct. 50, 116 L.Ed.2d 28 (1991)). Moreover, section three (3) of the Revised Organic Act of 1954, as amended, and the fifth (5th) and fourteenth (14th) Amendments of the U.S. Constitution, provide that no person shall be deprived of life, liberty, or property without due process of law. Id. Thus, all tenants are guaranteed advance notice and an opportunity to be heard by a peaceful process instead of the dangerous consequences of self-help. Id.
Prior to commencing the FED action, the landlord must serve the defendant with a Notice To Quit the premises. The length of the Notice To Quit depends upon the terms of the tenancy. For instance, The law of the Virgin Islands establishes that a month to month lease can only be terminated upon the presentment of a thirty day notice to terminate. Virgin Islands Hous. Auth. V. Edwards, 30 V.I. 3 (1994); see also, Henthorn v. Taylor, 6 V.I. 117 (1967) (‘A tenancy from month to month can be terminated only upon proper one month’s notice, which notice must be in writing.”) If the defendant has not quit the premises after deadline provided in the Notice To Quit, the landlord must file a Complaint with the Court. The Court will provide a Summons which will include the date of the hearing. The summons and Complaint must be served on the Defendant. The parties attend the hearing. If the landlord prevails, the Court will enter an Order of Eviction (or an Order of Immediate Restitution). The landlord will then file the Writ of Restitution and Praecipe, and coordinate the eviction with Marshal’s Office.
President Obama signed the Protecting Tenants at Foreclosure Act (“PTFA”) in May of 2009. The PTFA applies in the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title [May 20, 2009]. The PTFA states that the buyer of property subject to foreclosure takes the property subject to the lease and must honor the lease. The new property owner must provide the tenant with 90 days to quit the property before the owner can file an FED action to start the eviction process.
Whether the 90 day term applies also depends upon whether the person seeking to remain on the premises for 90 days is a bona fide tenant and whether the lease is a bona fide lease. For instance, in U.S. Bank Nat. Ass’n v. Hurtado, 27 Misc.3d 933 (N.Y. April 12, 2010) the Court determined that the mortgagor’s wife was not a bona fide tenants and therefore not entitled to remain in the premises for the 90 day term under the PTFA. In the same case, the Court held that the lease was not a bona fide lease entitling the tenants to remain in the premises for the duration of their lease or for 90 days under the PTFA. The Court explained that the lease was entered after the Notice of Pendency. Therefore, the tenants took possession of the premises subject to the foreclosure. The Court explained that a “Lis Pendens is a vital and required document pursuant to CPLR 6501. The document gives constructive notice to any person who purchases or acquires a tenancy that a foreclosure action affecting the right, title, use or enjoyment of real estate has begun so that anyone who seeks to acquire an interest in the premises will be bound by all proceedings in the mortgage foreclosure action.”
Furthermore, a party’s entitlement to a writ of assistance to recover possession of property under the above-mentioned circumstances depends upon whether, at the time the party seeks the writ, (1) there had been a prior adjudication of the party’s right to possession; and (2) the party’s right of possession is clear as against the person occupying the premises. Chase Manhattan Bank v. Paullyne Robert-Surzano, 2009 WL 1871467 (D.V.I. 2009). If the Court entered an order confirming foreclosure sale (of the property to the party seeking the writ of assistance), the Order Confirming Sale unconditionally settles the right to possession in the party’s favor. Id. Therefore, the propriety of the writ will depend upon whether the party’s right to possession is clear as against any possessory interest of the occupant at the time the Writ is sought. Id. A party who purchased property at a foreclosure sale has the right to possess the property during the pendency of the 6 month redemption period as against any party not occupying the premises pursuant to an unexpired lease and can obtain a Writ of Assistance to recover possession of the property without first having to show that (1) the party demanded that the occupant quit the premises and (2) that the occupant refused to quit the premises upon demand.