Separating a House from Communal Land in American Samoa

This is not a veterans benefit. It is the piece of American Samoa property law that decides whether a veterans housing benefit can reach you, and no summary of veterans benefits mentions it, so it is written up here. The problem first. Code section 37.0204 prohibits a matai in control of communal family lands from alienating any part of them to any person without the written approval of the Governor. It separately prohibits alienating any land other than freehold land to a person with less than one-half native blood. These rules exist to keep Samoan land in Samoan families and they work. They also mean that a house sitting on aiga land cannot be handed to a bank if the loan goes bad, which is why a conventional mortgage, and a VA-guaranteed loan behind it, has nothing to attach to. Chapter 15 of title 37 is the answer the Fono wrote in 1962. Under section 37.1502 the senior matai in charge of the family's communal lands, or the male members of the family owning and residing on those lands, or the owner of individually owned or freehold land, may agree with any person that a structure already standing or later built on that land "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 subject to the structure owner's right to remove it. The agreement must be in writing and offered to the Territorial Registrar for recording. Once it is recorded, subsection (c) does the work: "any person may obtain a lien or encumbrance on the structure which may be foreclosed or enforced as though the structure were personal property." That sentence is the whole mechanism. The land stays with the aiga, untouched and unmortgageable, exactly as chapter 2 of this title intends. The house becomes something separate that a lender can hold security in and, in the worst case, foreclose on as personal property. A veteran seeking a home loan on family land is asking for a recorded separation agreement first and a loan second. Three practical things follow. The consent is not yours to give. The statute names the senior matai in charge of the communal lands, or the male members of the family owning and residing on them. That is a family conversation, and the gendered wording of a 1962 statute is still the wording in force. Bring the lender's requirements to that conversation rather than after it. Recording is the operative act, not signing. The agreement is offered to the Territorial Registrar, and subsection (c) attaches "after recording has been completed in accordance with the terms of this chapter." An unrecorded agreement in a drawer does not make the house lienable. There is an objection procedure. Sections 37.1504 through 37.1506 cover notice of receipt of the instrument, recordation where no objection is made, and a hearing and decision where someone objects. Build time into the plan for it. This chapter is also why the VA Native American Direct Loan can be made here at all, and it is worth raising with VA or the Development Bank of American Samoa for any benefit that assumes you own a home, including adapted housing grants, where VA's ownership test meets a structure that is legally separate from the ground it stands on. Get that answer in writing before you rely on it.