28 July, 2009


I would have thought that the artist’s renditions on the early promotional material would have been preferable to the barren scenes depicted by these photographs. I have just been looking at the latest promotional material produced by Viceroy. The above is the conclusion I came to as a result. The architect’s elevations and drawings in circulation some years ago were quite attractive. By comparison, the real thing as depicted by these latest photographs is about as close a resemblance to Alcatraz prison as you can get. Have a look for yourself and tell me whether you are attracted.

View of the Point from the water



Seafront apartments


Shearwater and Royal Tern Villas

View of the Specialty Restaurant from the water

Shearwater villas


What seems to be their spanking new website can be seen at Viceroy Anguilla.

Their ownership opportunities page gives you lots of pictures of sea fans and exotic marine life.

But, I can’t find out what I get for my million dollars if I purchase a residence there. Will I be acquiring the Anguilla equivalent of freehold, called under our law ‘title absolute’? Or, am I perhaps acquiring a 99 year ‘lease’? Or, perhaps, it will be a ‘strata lot’ registered under the Condominium Act? That would be as good as real property. Anything else would be, in my opinion, mere vapour, gas, a mirage of real property.

Purchasers, I am told by one who has been in communication with me, are not encouraged to retain their own local lawyer to advise them on what exactly it is they are acquiring. Purchasers are under the impression that they can use the professional services provided by the seller! Can it be that even today there are buyers who are so naïve? I am certain they would not be so innocent in their own home country if they were acquiring a multi-million dollar home. They would have the best lawyer around advising them on their investment.

Some real estate speculators and developers in various parts of the world are selling ownership of imaginary real estate under the name of ‘club residences’ and the like. In Anguilla at least, such a purchase does not result in the ownership of real estate. What is acquired is nothing more than a contractual interest. The problem with contracts, as compared to an interest in real estate, is that a contract can fail or come to an end for one reason or another. When that happens, the purchaser has nothing more than a hope of suing for breach of contract. A contractual interest is most certainly not the same thing as an interest in land. Most people investing their hard-earned savings in a multi-million dollar piece of real estate are under the natural impression that they are acquiring an interest in the real estate.

It can’t be that Viceroy would be selling ‘timeshare’ as real estate in Anguilla. Timeshare, like condominium, can be a valid interest in land. But, it takes a statute to make it possible. There is no timeshare law in Anguilla. In Anguilla it is impossible to acquire as real estate a timeshare interest in a villa or apartment. It is possible to create a contract that claims to offer a ‘timeshare’ interest, but such a contract has the defect that all such contracts have: it is not an interest in realty in Anguilla. Anyway, Viceroy’s representative has assured me that Viceroy is not selling timeshares.

A pretend interest in land can also take the form of an equity interest in a company that holds the title to the real property. In such a scenario, a company owns the title to the real estate, and the individual purchasers actually acquire no more than shares in the company. But, again, this is not an interest in real estate. It is only an interest in personal property, shares in a company. If, for any reason, the company should go under, the shareholders are left with worthless equity. Well-advised investors will only purchase real estate in a country where the law recognizes and protects interests in real property.

On Sunday I sent an email inquiry to Viceroy's Phillip Day, inquiring what real estate interest does the purchaser of an apartment, or residence as they call it, acquire. He replied:

In response to your e-mail, Viceroy Anguilla does not sell "apartments." Viceroy Anguilla is selling one, two and three bedroom condominium residences along with four and five bedroom free-standing villas. As I mentioned before, Viceroy Anguilla does not sell "time-shares" or any other partial type of ownership commonly referred to as "fractional."

. . . At closing, each purchaser receives a title insurance policy from Stewart Title guaranteeing fee simple ownership of the residence free of any liens, encumbrances or other title exceptions, excepting, the following: (i) applicable laws, regulations and ordinances; (ii) the condominium documents that establish and govern Viceroy's condominium homeowners association; (iii) easements, rights-of-way, covenants, restrictions and other encumbrances that affect the condominiums; (iv) all easements, rights-of-way and notes shown on the recorded development plan; (v) easements, claims of easements, not shown by public record (vi) discrepancies or conflicts in boundaries, easements, encroachments, rights-of-way, encroachments or area content that a satisfactory current land title survey would disclose; (vi) possible additional tax assessment by reason of new construction of improvements, not yet due and payable; and (viii) the statutory rights and easements granted to the Seller as Declaring under the condominium documents by the Government of Anguilla, British West Indies.

Every Viceroy Anguilla purchaser is provided with copies of all condominium documents for their examination and approval many months prior to closing. All Viceroy Anguilla purchasers are advised verbally and in writing to consult their own attorney about the purchase.

The Stuart Title referred to is a US title insurance company that usually guarantees title to deeded property held by fee simple ownership. It is useful to have title insurance in the case of deeded property. There is no deeded realty in Anguilla. A person purchasing real estate in Anguilla will expect to get 'absolute title', which is a land title already guaranteed by law.

All real property in Anguilla is registered title under the Registered Land Act. A guarantee by a private company of my absolute title to my property is about as meaningfull as my guaranteeing to you that the sun will rise in the east tomorrow. The laws of the planets and the stars already guarantee that the sun will rise in the east tomorrow. Registered title means that the Act imposes an obligation on the government of Anguilla to guarantee title. Title once registered is guaranteed by law. No private company can give a better or stronger title guarantee that the Act and the Constitution of Anguilla.

Given that there is no fee simple title to land in Anguilla [it was abolished by law in 1974], I have difficulty understanding how Stuart Title will guarantee that that is just what a purchaser will receive. This must be a mistaken understanding by Mr Day about the law of Anguilla. I have previously pointed this out to him, but he does not seem to understand the point.

Do make sure to get your own lawyer to advise you on any purchase of a 'residence'. I am certainly no expert, never having seen any of the contractual or title documents.


  1. Are the contractors who are owed monies by the Viceroy project allowed to demand to be paid before viceroy is Opened or any units sold or any ownership transfered?
    Could liens be placed on all of the Viceroy projects stopping any openings , sales etc until payment has been made in full to local contractors?

  2. I am told that it is not true that Viceroy owes any local contractors on Anguilla. They have always paid their local bills on time. Where can I go to find a list of local contractors whose bills remain unpaid? Is there any lawyer who has sued for a single bill?

    If there was a judgment for an unpaid bill, I believe that I am right in saying that the creditor would have a charge over Viceroy’s property. A high court judgment alone under the law would give them the right to hold on to Viceroys property.

    If local creditors have not bothered to show they mean business by the normal and proper route of a law suit, then why should Viceroy bother with them?

  3. From what I hear around town, Viceroy seems to be paying some contractors and not paying others. This leads me to wonder if they are disputing the amount or quality of some of the work underlying these claims.

    These contractors seem unwilling to talk about this possibility. They change the subject. They say, in essence, "They are evil foreigners. We are angelic Anguillians. Pay us now."

    And so I wonder if we're hearing the whole story.

  4. The idea that a hotel should not be allowed to open until it's paid all its debts seems more like extortion than something a court would do to protect a creditor.

    The law is supposed to weigh right and wrong, instead of putting pressure on one party or another. Pressure tactics of this sort are more often found in politics than court rooms. If the above poster wants political help, he should go see the politicians, not expect the courts to act like the Mafia.

  5. Who will control the homeowners' association of this alleged condominium? Will it be the actual owners of the individual units, voting on issues in a democratic manner as they do at Carimar, or will they find themselves victims of the developer, like many hapless investors in St. Maarten?

  6. Well, well. After viewing these photos, it is quite clear why Anguillians refer to the island as "The Rock". - Scotty

  7. Keep up the good work Mr. Mitchell on behalf of Anguillians.

    Investigate the Flag Project. Find out why it is dead in the water. Who weilds influence? Why hasn't the Government intervened in an attempt to save Anguilla's Economy? It is clear that the shut down of Flag has severly throttled the economy.

    Expose the Draft Constitution to Public scrutiny.

    Dig deeper into the Tax Agreement the Chief Minister signed on behalf of the People of Anguilla recently in London.

    Focus on the Elections Act. The prohibition against giving anything in expectation of the recipient voting for the giver. Watch like a hawk! Institute private prosecutions if anyone breaks the Law! Elections are around the bend.

    Continue to keep feet to the fire; continue, in your own laudable way, to look out for Anguillians.

  8. Don, looks like you might need some help with all those demands! Perhaps "anonymous" would volunteer as your right-hand paralegal;) - Scotty

  9. It seems that I wrote this post out of ignorance on a point of law. I have written that ‘fee simple’ does not exist in Anguillian real estate law. That is a correct statement of the law.

    I have also suggested in this post that it is a complete error on their part for Viceroy and Mr Philip Day to be referring to ‘fee simple’ title when marketing strata lot titles in Anguilla. That is not totally correct.

    Someone, not an attorney, has just pointed out to me that Anguilla’s Condominium Act is the real culprit. That Act says that it applies only to land held by ‘fee simple’. The Act nowhere mentions ‘title absolute’. That is an unfortunate error on the part of the Condominium Act. Title absolute is the only land title that a purchaser of a condominium, or ‘residence’ as the marketers for Viceroy describe it, can expect to acquire.

    So, the Condominium Act of Anguilla contains an anachronism. It retains a land ownership term long ago abolished by law in Anguilla. It was careless of the draughtspersons, who took the Bermuda Condominium Act and replace Anguilla in the title, not to have gone through the entire Act to make sure they properly adapted it to Anguilla law.

    However, it is still my view that Viceroy cannot offer fee simple title to purchasers of condominiums in Anguilla, regardless of the retention of the term in the Condominium Act. Such a land title simply does not exist any longer.

    Anyone promising to transfer such a land title to a purchaser will not be legally able to do so. The proper land title that will be transferred in Anguilla remains ‘title absolute’.

    The Condominium Act does not require Viceroy to offer ‘fee simple’ title to purchasers, far less does it require Stuart Title to guarantee that Viceroy will deliver something that does not exist and that it cannot deliver.

    If I had known of the error in the Condominium Act at the time I wrote the post, I would have slanted it differently. My apologies are due to Mr Philip Day for being astonished at his use of the obsolete term ‘fee simple’ and for suggesting that his use was due to a lack of understanding of the law on his part. If there is any fault, it lies at the feet of the Anguilla parliamentary draughtsman of the time.

  10. Well I see this has reared it's ugly head again.

    If you want to post these pictures I suggest you update them now the hotel is around 75% open and all villas are up and running.

    I have spoken to a lot of guests staying in Alcatraz as you call it and they are more than happy.

    The only critisism is the staff which is mostly Anguillans for now, hopefully they will upgrade in the near future and bring in people that actually want to serve the punters.......

    I have seen this project from scratch and although it isn't perfect it is by far the best thing that has happened in Anguilla in a long time.

    The days of the sleepy island have long gone, other islands are far more attractive now and Anguilla needs to step it up a few gears if it wants to compete.

    With the elections around the corner it was no surprise something like this would again be brought up, sadly for the person that did it the horse has already bolted, only local labour can be blamed if this project isn't completed because all the overseas guys that got it this far have now left.....

  11. check the Anguilla court records. everyday there are cases pending against Viceroy. Interestingly though Barnes bay development is also suing Viceroy. Barnes bay Development is Viceroy. sue themselves then hide the $$$


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