IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN
MYRAH KEATING SMITH ) ) CIVIL NO ST 2020 CV 00323 Plaintiff ) ) ACTION FOR FORCIBLE vs ) ENTRY AND DETAINER ) HUSSEIN MUSTAFA, ) ) Defendant )
Cite as 2021 VI Super 13U
MEMORANDUM DECISION
CARR, H , Maglstrate Judge
111 THIS MATTER was heard by Magistrate Henry V Carr III of the V I Superior Court on January 26, 2020 At that time, no in court hearings were allowed without receipt of specific permission due to the COVID 19 pandemic Therefore, Plaintiff Myrah Keating Smith appeared at trial in person with her legal counsel, Maria T Hodge, Esq , Via the Video conferencing platform “Zoom ” Defendant Hussein Mustafa, whose name was corrected on the record because it was in reverse order in previously submitted documents, appeared in person with his legal counsel Carol A Rich, Esq , Via Zoom Defendant’s son, Mohammad Mustafa, also appeared Via the Zoom platferm Both parties testified, as did Defendant’s son
112 Under an FED Complaint filed on August 7 2020 pursuant to Titles 4 and 28 of the Virgin Islands Code, Sections 123(6) and 782, respectively, Plaintiff seeks the eviction of Defendant from the subject premises on grounds that Defendant is a month to month tenant under an expired commercial lease agreement dated April 20, 2011 Plaintiff further alleges that Defendant was served with a proper 30 day notice to quit; yet he remains in unlawfill possession of the property and continues to operate a business known as Bayside Mini Mart, a grocery and retail store, on the property Plaintiff further alleges that she is “the owner and landlord of premises described as Units 1, 2, 3, and 4 located at Meada s Plaza, Building #2, Parcel No 6B Cruz Bay Town, St John, U S Virgin Islands ”
113 On December 30, 2020, Defendant, through his legal counsel, filed a motion to dismiss the FED Complaint His grounds in support of dismissal were as follows
(a) the Court lacks jurisdiction to adjudicate this matter as a summary proceeding for Forcible Entry and Detainer (FED) under 28 V I C § 782, because Hussein Mustafa has a valid unexpired lease for the premises at Units 1, 2, 3, and 4 Meada’s Plaza, Building #2, Parcel 6B Cruz Bay Town; 0)) there is a bona fide dispute over Memorandum Decision 2021 VI Super 13U Myrah Keating Smith V Hussein Mustafa ST 2020 CV 00323 Page 2 of 10
whether Mr Mustafa has a right to specific performance of Plaintlff Myrah Keating Smith s promise to further extend the Lease through December 31, 2024; (0) Defendant has filed a civil action in the Superior Court against Plaintiff for specific performance and damages [filed on December 30, 2020 in ST 2020 CV 00515] because this is a dispute that cannot be adjudicated as a summary proceeding; and (d) Plaintiff’s notice to quit is defective
114 On January 6, 2021, Plaintlff, though her legal counsel, filed an Opp051tion to Defendant’s Motion to Dismiss contending that the Court cannot dismiss her Complalnt ‘ [until] the Court aftei taking of evidence concludes the Defendant has presented actual evidence demonstrating he has a colorable claim of right[ ] citing V.I Port Authorzty v Joseph 49 V I 424, 431 (2008) Undei the authority of VI Port Authorzty and other local judicial cases, the Court denied the Motion by Order dated January 22, 2021 ( The Court is duty bound to proceed with evidence until it appears that either or both of [a question of title or a complicated case of the iight t0 possession] does or do in fact exist ) Inter Car Corp v Dzscount Car Rental 21 VI 157 158 159 (Ten Ct 1984) cited by V.I PortAuthorzty supra 115 This case was originally scheduled to be heard on January 7, 2021, but was continued to January 26, 2021, due to a medical emergency suffered by Defendant Said continuance was sought by Attorney Rich on January 7, 2012 and was not opposed by Attomey Hodge, so long as the case could be heard within the next several weeks
116 Aftel the taking of testimony and the admission of documents into evidence from each side, the Court heard closing arguments by counsels At the conclusion of the January 26, 2021 hearing, the Court took the case under advisement for the purpose of issuing a written decision and judgment Based upon its findings of fact and conclusions of law helein, the Court determines that it has not been divested of exercising FED jurisdiction as it finds no colorable defense or equitable concerns that must be addressed in the regular civil division of the Superior Court It will therefore issue a judgment granting Plaintiff immediate restitution of the leased premises
I The applicable law and standard
117 Under Inter Car Corp , supra at 159, Plaintiff has pled one of the four conditions under which a FED case can exist before the Magistrate Court There is an undisputed oral or written lease which has expired ’ In addition, Plaintiff must further prove that the appropriate notice to quit in the particulai case has been served on the tenant according to law Id However, a FED cause of action will not lie where 1 Title to the premises is in question; or 2 Where there is proved to the Court to must a bona fide question of the existence of a lease at law or in equity, which has not yet expired Id at 159 See also Iron Mountain & H Razlroad v Johnson, 119 U S 608 612 (1887) CML v Dunagan 904 F 2d 189 191 (3d Cir 1980) 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 ” Estate ofThomas Mall Inc v Terrztorlal Court ofthe Vzrgm Islands 923 F 2d 258 264 (3d Cir 1991) citing Iron Mountain supra “ the jurisdiction of the Court in FED cases is confined to determining the issue of peaceable possession and does not extend to (a) an adjudication of title or Memorandum Decision 2021 VI Super 13U Myrah Keating Smith V Hussein Mustafa ST 2020 CV 00323 Page 3 of 10
(b) the right to possession; nor ean the justice adjudicate a right of possession that depends on an equitable interest in the premises or inqulre 1nto equitable rights and give relief to Which the party might be entitled in equity Inter Car Corp supra at 158 FED actions do not extend to deciding colorable claims of right to be in possession of the leased premlses Estate offhomas Mall, supra at 264 118 The term “bona fide and good falth claim” and/or “colorable defense or claim” are used interchangeably by the courts These terms have been interpreted to mean not frivolous and not Wholly w1thoutmer1t Malpere v Anahzta Mzraftabi Revocable 2004 Trust, 426 F Supp 3d 123 (D C V I App Div 2019) The bar obviously is not particularly difficult to meet in divesting a court from exercising FED jurisdiction However, While the bar is admittedly low, the Court does not believe that, under the various definitions of bona fide and good faith claim and/or colorable defense or claim, the Court can construe a tenant’s evidence in a way which would be in clear V101at10n of a statute or 1ts underlying policy
119 However, before an FED actlon can succeed under any of the four conditions set forth 1n Inter Car Corp , Plaintiff must establish proper service of the appropriate notice to quit “When the rent received in a lease is payable at periods of less than three months the time of such notice [of termination] shall be sufficient if it equal to the interval between the times of payment ” 28 V I C § 752 See also 28 V I C § 789(a)(2) The law in the Virgin Islands is that a month to month tenancy can only be terminated upon serV1ce of a thirty day written n0t1ce to terminate Vzrgm Islands HousmgAuthorzty v Edwards, 30 V I 3 5 (Terr Ct 1994) “A notice to quit shall be in writing and shall be served upon the tenant or person in possession by being delivered to him or left at the premises in case of his absence therefrom 28 V I C § 790
II Agreements for the lease of real property for more than a year must be in writing to avoid being in violation the V I statute of frauds
1110 The Vlrgin Islands Statute of Frauds states, in peitinent parts
(a) Except for a lease for a term not exceeding one year, no estate or interest in real property, can be created, granted, assigned, transferred, surrendered, or declared, otherwise than
(2) by a deed or conveyance or other instrument in writing signed by the person creating, granting, assigning transferring surrendering, or declaring same, 28 V I C 241 1111 Section 242 of Title 28 of the Virgin Islands Code specifically provides Every Contract for the leasing of land for a longer period than one year from the making thereof, or for the sale of any lands, or any interest in lands, shall be V01d unless the contract or some note or memorandum is in writing, and signed by the party to be charged, or by his lawful agent under written authority 1112 The creation, granting, or assignment of any mterest in real property longer than one year is void unless such interest is in writing and signed by the party to be charged Peppertree Memorandum Decision 2021 VI Super 13U Myrah Keating Smith v Hussein Mustafa ST 2020 CV 00323 Page 4 of 10
Terrace v Wzllzams 52 VI 225 231 (2009) Fountam Valley Corp v Wells 19 VI 607 615 (D C V I 1983) The V I Statute of Frauds is substantive law and not a mle of evidence Globe 021v Hess 5 V I 260 (Terr Ct 1966) 1113 The Court can gather from multiple local judicial decisions that the purpose of the statute of frauds, when dealing With a Vital interest affecting real property, is to bring certainty and definiteness to real property transactions and for the prevention, by its name sake, of fraud or perjury In other w01ds, not only does the statute of frauds seek to protect the interest of third parties, but also to assist the trier of fact in determining the palties intentions involving a matter as important as real property 1114 If the parties intentions are expressed in a discernible writing, it leaves the decider, judge or jury with less wriggle room Urh v Buflo 2017 V I LEXIS 17 (V I Sup Ct 2017) The purpose of the statute of frauds “is to piotect contracting or negotiating parties from the vagaries of the trial process A trier of fact may easily be fooled by plausible but false testimony to the existence of an oral contiact This is not because judges or jurms ale particularly gullible but because it is extremely difficult to determine whether a witness is testifying tluthfully Id at **10 11, quoting from the Seventh Circuit Court of Appeals I See also Mountaintop v Colombzan Emeralds Inf] 43 V I 193 209 (Terr Ct 2001) (The purpose of the statute of frauds is to shield persons with interests in land from being depiived of those interests by perjury ”) 1115 Pal“: performance can take the transaction out of the ope1ation of the statue of f1 auds In Barnes v Weber, the Superior Court found credible evidence to support a colorable defense of part perfonnance that would divest itself f1 om exeicising FED jurisdiction 50 V 1 167 (Sup Ct 2008) “Webel has provided written evidence to support her claim to a life estate, and piovided credible eVidence that she lived on the pi operty and provided services to F0rd before his death ” Id at 178 The Court cited the equitable doctiine of part pelformance as follows
In order to enfmce a verbal agreement on the grounds of part performance the evidence presented must be clear and definite in both the terms and the subject matter of the contract Additionally, the plaintiff must show such acts and conduct of the defendant which amount to a repiesentatlon that the defendant proposed to honor the oral agreement and not avail himself to the Statute of F1 ands in Older to escape its pe1 formance Furthermore, the plaintiff must have relied on this representation either in performance or pursuance of his contract so that he would incur an unjust and unconscientious injury and loss if the defendant is allowed to rely on the statute
1 This Magistrate Court recognizes that in Urh Superior Court Judge Denise M Francois implied that the statute of frauds is evidentiary, but she made no final determination and left the precise issue to be briefed by the parties of whether the majority or minority rule concerning the application of the statute of frauds should be the prevailing common law rule in the Virgin Islands under Banks What is important is what she recognized ‘suggested contract terms change during the course of a negotiation and the proposed wording of a contact might greatly differ during the beginning of and the end of negotiations The Statute of Frauds saves a court from having to take time to consider parole evidence to figure out parties’ mutual intent upon arriving at a final agreement ” Id at **11 12 Memorandum Decision 2021 VI Super 13U Myrah Keating Smith v Hussein Mustafa ST 2020 CV 00323 Page 5 of 10
Id at 177 cztmg Jackson v Pztterson 2008 U S Dist LEXIS 65111 *16 n 19 (D VI 2008)
FINDINGS OF FACT
1116 Based upon the testlmony of the partles and of Defendant’s son, and upon review of the exhibits admitted into evidence, the Court makes these findings of fact 1117 Plaintiff Myrah Keating Smith brought this action in her individual name but is the co trustee, along with her husband Ralph Solomon, of the trust that owned the premises in question at the time that the Commercial Lease, described herein, was executed between the parties However, she has the specific authority to handle and manage the real properties in the trust, including the subj ect premises
1118 Defendant Husse1n Mustafa 1s a tenant under the written Commercial Lease agreement signed by him and Plaintiff on or about August 20, 2011 for Units 1, 2, 3, and 4 located at Meada’s Plaza, Building #2, Parcel No 6B Cruz Bay Town, Cruz Bay Quarter, St John, U S Virgin Islands See Signed Guarantor Agreement attached to the Commercial Lease P1 Ex ((A3,
1119 The original basic term of the lease was for five years commencing on March 1, 2011 and terminating on February 28, 2016
1120 There was one five yea1 option under paragraph 1 (2) of the Commercial Lease
Provided Tenant has not been in default of the terms of the Lease, Tenant shall have the option to renew this lease for an additional lease term of five (5) years, provided that Tenant gives Land101d, or its duly authorized agent, written notice of such intention by registeied mail, not less than three months in advance of the expiration of this Lease The rent payable during the option period shall be determined by negotiations between the parties hereto In the event that the parties cannot leach an agreement, within 90 days after receipt of notice from tenant of its exercise of its option to renew, as to the rent payable during the option period, then the lease shall terminate 1121 During the first year of the five year term of the Commercial Lease the rent was $119 400 00 per year payable in monthly installments of $9 950 00 following which the rent would increase annually [d]uring the second and subsequent years of the Term, the Base Rent shall be increased by three percent (3%) per year ” 11 2 (2) of P1 Ex A”
1122 The security deposit was double the first year’s basic monthly rent of $9 950 00, or $19,900 00 “In the event the rental hereunder is 1ncreased as hereinabove provided, Tenant shall, within 15 days of any rent increase, pay to Landlord such additional sums as are necessary to equal out a security deposit encompassing the sum equal to two (2) increased monthly installments ” 11 2 (5) of P1 Ex “A” Memorandum Decision 2021 VI Super 13U Myrah Keating Smith v Hussein Mustafa ST 2020 CV 00323 Page 6 of 10
1123 Paragraph 21 (1) of the Commercial Lease stated ‘1n the event of Tenant holding over after the termination of this lease, thereafter the tenancy shall be from month to month in the absence of a written agreement to the contrary ’
1124 Consistent with “Use of the Premises” prov1sions 1n 1 3 (1), Defendant operated on the leased premises a “general store involved in retail sales” known as Bayside Mini Mart 1125 Defendant nevel exercised the option to renew the CommerCIal Lease for another five yea1s Upon expiration of the Commercial Lease, Defendant became a month to month tenant whose tenancy could be terminated upon giving a 30 day notice to quit
1126 When Defendant failed to exercise the lease’s option, sometime in July 2017, Plaintiff delivered a proposed Amendment to Commercial Lease’ to Defendant, subject to certain conditions 1 Pay the back accrued rent increases at 3% commencing the second yea1 of the basic lease term and continuing each yea1 thereafter, 2 Pay the security deposit, and 3 Sign a w1itten lease renewal P1 Ex B While it appeals that Defendant may have complied with conditions one and two, he never returned a signed lease renewal to Plaintiff No signed lease 1enewal was ever offered or admitted into evidence by either side
1127 One of the only two documents over which the parties argued was Plaintiff’s Exhibit “B”, the unsigned “Amendment to the Commelcial Lease ” While Plaintiff claims that she delivered that document to Defendant, Defendant and his son both deny evei seeing the document until the date of the Januaiy 26 2021 hearing The Cou1t simply does not find their denial to be credible 1128 One, Plaintiff has been cautious in making celtain that Defendant must receive certain notices, so why would she not be as cautious in making certain that Defendant received the Amendment to Commelcial Lease? There was no testimony by Plaintiff that she was upset at how Defendant was ope1ating his mini malt on the leased premises until after she decided to terminate the month to month tenancy in the latter part of 2020 Defendant was paying the basic monthly rent and then ag1eed to pay the 3% annual 1ent increases in agieed upon installments In other words, the Court cannot discern any reason why Plaintiff wanted Defendant not to continue his mini mart business on the leased premises by executing a written document to continue the lease until February 28 2021
1129 Two, and even more confounding, Plaintiff and her husband both reside in Cruz Bay, St John where the Bayside Mini Mart is located Something as important as a lease to safely and uninterruptedly continue the operation of one’s bus1ness was left up in the an, wh1le Defendant had only to travel a small distance in Cruz Bay, St John to either deliver a wr1tten exercise of the option or a signed Amendment to the Commercial Lease to either Plaintiff and/or her husband There 1s no evidence that Defendant did either Defendant is a businessman who operated several businesses in Meada’s Plaza since 2002, includlng a gift shop known as Fantasia and a self serve coffee and yogurt shop known as Sip and Chill The Court therefore cannot dismiss this failure as the ignorance of a naive actor Memorandum Decision 2021 VI Super 13U Myrah Keating Smith v Hussein Mustafa ST 2020 CV 00323 Page 7 of 10
1130 On or about June 29, 2020, Plaintiff and her husband personally delivered to Defendant’s busmess premises, as well as by certified mail, a 30 day notice to quit the premises by July 30, 2020 P1 Ex C 1131 On or about July 9, 2020, Plaintiff and her husband delivered personally, as well as by certified mail, a notice to Defendant from Plaintiff dated July 9, 2020 titled reiteiation of notice of termination of tenancy dated June 29, 2020”, demanding that Defendant deliver possession of the leased piemises to Plaintiff by July 30 2020 P1 Ex D
1132 When it appeared that Defendant was doing nothing to vacate the premises by July 30, 2020 Plaintiff had her legal counsel Maria T Hodge Esq write a letter dated July 23 2020 to Defendant uiging him to vacate the leased premises by July 30, 2020 P1 EX “E” Plaintiff and her husband personally deliveied Attorney Hodge 5 letter to Defendant at his place of business 1133 Attorney Hodge w10te another letter to Defendant dated August 3, 2020 that his month to month tenancy terminated on July 30, 2020 and because he still remains in possession of same, he must vacate the leased p1emises within 3 days from the date of her lettei under the provisions of Title 28 0f the Virgin Islands Code Section 789(a)(2) Plaintiff and her husband both deliveied this notice to Defendant at his place of business presumably about the same time as the date on the notice P1 Ex F 1134 Defendant continued to opeiate the Bayside Mini Mart on the leased p1emises and continues to opeiate same through the date of hearing
1135 In Older to prevent the invalidation of the notices to quit the last lent check that Plaintiff deposited and cashed was f01 the month of June 2020 Defendant continued to send monthly lent checks that Plaintiff did not deposit until he started to f01wa1d the rent checks to his legal counsel, Carol Rich, Esq , who deposited them into he1 escrow account Piesumably, there are six months’ worth of rent checks that ale outstanding, though Plaintiff testified that she paid the gross ieceipt taxes on the rental amounts
February 11, 2017 Letter
1136 Apparently, Defendant ielies on a February 11, 2017 letter from Plaintiff to Defendant detailing the rent deficiencies respecting the 3% annual rent increases commencing the second year of the basic lease’s term that Defendant had failed to pay from March 1, 2016 through March 1 2017 in the total amount of $10,857 00 Def Ex A Several lines were crossed out on the second page, but this line was not ‘Lease Renewal Period Monthly rent payments March 1, 2016 February 28 2021 $11198 82 1137 While Plaintiff emphatically denies that she ever declared that the February 17 2017 letter was the lease renewal or amendment, Defendant and his son testified that she did declare or tell them that the February 11, 2017 letter constituted the lease renewal The Court accepts Plaintiff’s testimony that she never declared that the February 17 2017 constituted the lease renewal or extension First, the February 11, 2017 letter comes a year after Defendant should have exercised the five year option, in writing by registered mail, at least 90 days before expiration of the basic term of the Commercial Lease expiring on February 28, 2016 Second, Memorandum Decision 2021 VI Super 13U Myrah Keating Smith V Hussein Mustafa ST 2020 CV 00323 Page 8 of 10
the preface of the February 11, 2017 letter states that it is being sent out after, upon considering Defendant’s request for a lease renewal, Pla1ntiff discovered that Defendant was in default by failing to pay the annual rent increase of 3% Third, Plaintiff’s alleged declaration that the February 11, 2017 letter would be the lease renewal, instead of a written and signed Lease Amendment, e g , P1 Ex ‘B”, would fly in the face of Plaintiff’s past bus1ness practice of requiring her tenants to execute formal written Lease Renewals or Extensions (The Court entirely disregarded Defendant’s testimony that other lease renewals for his various other businesses he operated in Meada’s Plaza were not done through written lease renewals as insubstantial and contrary to Plaintiffs testimony) Fourth, the proposed construction of the February 1 1, 2017 letter that it was intended to be the lease renewal would conflict with the three condition precedents that Defendant was obligated to satisfy before Plaintiff would consider extending the lease for another five years Defendant had not paid the accrued rent; Defendant had not paid the security deposit or the amount it had increased in accordance with the 3% annual increase in rent; and Defendant had not even signed the Amendment to Commercial Lease
1138 In other words, the Court believes that the purpose behind the statute of frauds comes into operation here and, in partlcular, under § 242 every contract for a lease longer than a year for any inte1est in land is void unless such contract or note or memorandum 13 in writing ” Even if the Court were to assume that each party knew the deSCIiption of the premises whose lease s term was sought to be extended under the Commeicial Lease dated April 20, 2011, according to the subject portion of the February 1 1, 2017 letter, Plaintiff’s hotly disputed alleged oral decla1 ation is being used by Defendant as a sword to defeat the application of the statute of frauds under § 242 The letter, taken as a whole, does not satisfy the requirements of the statute of frauds, even if the Court were to consider Plaintiff’s alleged oral declaration that the Febluary 11, 2017 letter was the lease renewal Moreover, that alleged oral declaration should have been in writing in orde1 to be enfo1ceable January 9, 2018 Rent Abatement Letter
1139 Plalntiff hand delive1ed to Defendant a letter dated Janualy 9, 2018 , wherein she gave all of her tenants, including Defendant, a four month lent abatement for the months of September 2017 though December 20171 for a total of $44,792 00 / 4 $11,198 00 per month, plus no insurance and property tax contributions required by the lease for 2017 Defendant wants the Court to construe this January 9, 2018 letter as a tacit admission through certain language in that letter that the parties were operating under a lease renewal through February 28, 2021 Def Ex B
1140 The same letter mentions that Defendant had not paid the security deposit or the twice increased monthly rent then due The Court does not construe this letter as a tacit admission by Plaintiff that the February 17, 2017 letter formed the lease renewal between the parties to February 28 2020 1141 Even 1f the letter’s language is less than precise, there is nothlng 1n the letter that would indicate that Plaintiff was treating Defendant as anything less than a month to month tenant whose lease Pla1ntiff had not yet terminated Memorandum Decision 2021 VI Super 13U Myrah Keating Smith v Hussein Mustafa ST 2020 CV 00323 Page 9 of 10
April 10, 2020 Lease Repair Letter
1142 Defendant attempts to use Plaintiff’s April 10, 2020 letter to establish a couple of matters Def Ex “C” One, Defendant claims that Plaintiff nefariously forwarded this letter to him demanding that he must address certain conditions on or around the leased premises and then after Defendant complied w1th her demands, P1a1nt1ff then terminated his tenancy Two, Defendant relied on his letter to correct the conditions of the leased premises therefore implying some form of promissory estoppel or part performance And the corollary to number two, this is fiJIther proof that Plaintiff had established the February 11 2017 letter as the lease renewal through February 28, 2021 Defendant did correct the defective conditions of the leased premises by June 2020
1143 The April 10, 2020 letter does not require Defendant to make any repairs in connection to the leased premises but instead to remove certain longstanding items that may have been in Violation of the lease from its inception removal of a shack installed without Plaintiffs permission, relocation of a condenser installed without Plaintiff’s permlssion, and replacement of a rotten and rodent infested baseboard behind the coolers 1144 Plaintiffs April 10, 2020 letter requests are entirely consistent with a tenant who is holding onto the leased premises on a month to month basis and who still has certain lease obligations with Which to comply before that month to month tenancy is terminated by the landlord 1145 Defendant’s son testified that his father expended upward of $300,000 00 to clean and disinfect the Bayside Mini Mart damaged by the two September 2017 hurricanes and to remove and replace damaged inventory and equipment The Court questions the competency of this witness to testify about this matter and finds that if such expenditure was made by Defendant, it was based upon a misplaced reliance on a lease renewal that was not executed in accordance With law CONCLUSIONS OF LAW
146 The Magistrate Court has jurisdiction over this matter pursuant to subsection (a)(6) of section 123 of T1t1e 5 of the Virgin Islands Code
1147 Plaintiff has established by a preponderance of the evidence that the April 20, 2011 Commercial Lease between the parties expired on February 28, 2016
1148 Defendant did not exercise the five year option by submitting to Plaintiff an exercise of that option, in writmg, by registered mail, not less than 90 days before the expiration of the lease Thereafter, Defendant became a month to month tenant
1149 None of Defendant’s Exhibits, including Plaintiff s disputed declaration that the February 11, 2017 letter was to be the lease renewal, satisfy the statute of frauds requirements in order for there to be an enforceable lease renewal Memorandum Decision 2021 VI Super 13U Myrah Keating Smith v Hussein Mustafa ST 2020 CV 00323 Page 10 of 10
1150 Defendant has failed to establish any colorable defense even at a minimum level that would deprive this Magistrate Court from exercising FED jurisdiction To make a finding that Defendant had made a minimum showing of a colorable defense would be in direct contravention of the statute of frauds and its underlying policy In fact, it would be tantamount to a judicial grant of a lease renewal, more than a year through February 28, 2021, in direct Violation of the VI statute of frauds and its underlying policy
{[51 Defendant has failed to establish any part performance that would take the transaction out of the operation of the statute of frauds, including Plaintiffs alleged oral declaration that the February 11, 2017 letter was the lease renewal
1152 Plaintiff properly served Defendant with the appropriate 30 day notice to quit the leased premises
115 3 Defendant unlawfully remains in possession of the leased premises for which Plaintiff is entitled to a judgment granting hei immediate restitution of the leased premises
1154 Defendant or his legal counsel is W1 ongfully withholding monthly 1ent money that must be returned to Plaintiff due to his continued use and occupancy of the leased premises for the Bayside Mini Mart The continued withholding of this rental money or the failure to return same to Plaintiff would impermissibly enrich Defendant t0 Plaintiff’s financial detriment, while he has opeiated and continues to opeiate the Bayside Mini Matt on the leased premises without providing Plaintiff due compensation in exchange for same
1155 A written Judgment will follow this Memmandum Decision gianting in Plaintiff’s faV01 and against Defendant the immediate restitution of the leased piemises, plus the retum of all rental monies held in es01ow or otherwise A copy of this Memmandum Decision will be forwarded to counsel of record
DATED February 6 2021 j éf 1/: %E / HENRY V CARR III Magistrate Judge of the Supeiior Coult of the Viigin Islands ATTEST TAMARA CHARLE Clerk of the Court BY ( gigZMflgi COLLEEN SALEM Senior Deputy Clerk 441/27592/