37.1502 Power and authority for agreement of separation-Recording agreement-Encumbrances.

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(a) The senior matai in charge of communal lands belonging to his family, or the male members of the family owning and residing on communal lands, or the owner of individually owned lands or freehold lands, shall have the power and authority, as limited by this chapter, to agree with any person that any structure now existing or hereinafter erected on such lands shall not be or become a part of the real estate, but shall remain separate and distinct therefrom, subject to ownership separate from the land, and also subject to the right of removal by the owner of the structure.

(b) Any agreement made under the authority of this section shall be reduced to writing and offered to the Territorial Registrar for recording.

(c) After recording has been completed in accordance with the terms of this chapter and subject to the restrictions provided by law, any person may obtain a lien or encumbrance on the structure which may be foreclosed or enforced as though the structure were personal property.

History: 1962, PL 7-23; 1968, PL 10-56.

Case Notes:

Male members of the family means majority of such members over 18 years of age. Fa’ana’e v. Tu’uu s., ASR (1978).

Recognized individually owned land but does not define it; courts definition is: (I) cleared on individual’s own initiative: (2) cultivated by him; and (3) occupied by him. Fanene V. Tallo, ASR (1977).

Court judgment that disputed tract was communal land of a family which was not a traditional Samoan family with a matai, left open the question of how to deal with ownership rights since family could not create new matai title. Willis v, Willis (mciii), 4 ASR2d 144 (1987): Court finds family accepts land as owned as tenants-in-common by six family members. Willis v. Willis. 4 ASR2d 188 (1987).

Judgment that disputed tract was “communal land” of a family that was not a traditional Samoan family with a matai left open the question how family was to exercise rights of ownership under land statutes presuming the existence of a senior matai, since family was prohibited by statute from creation a new matai title. A.S.C.A. §§ 1.0401, 37.1502-03. Willis v. Willis, 4 A.S.R.2d 144 (1987).

Land held to belong to family members as tenants in common is “communal” insofar as each member held an undivided interest in the land by virtue of joint occupation and cultivation, but was not Samoan communal property for purpose of statutes requiring action to be taken by a matai. A.S.C.A. § 37.1502-03. Willis v. Willis, 4 A.S.R.2d 144 (1987).

Chattel mortgages in American Samoa create a lien rather than pass legal title. A.S.C.A. § 37.1502. Shantilal Brothers, Ltd, v. KMST Wholesale, 15 A.S.R.2d 115 (1990).