Requirement:
submit at least 3 replies that are 300–600 words in response to other classmates’ threads. In each reply, indicate whether you agree with the other classmates’ opinions, why their assessment of the situation is or is not accurate, why the original posting is or is not in agreement with your assessment of the situation, and what should be done differently. For each thread and each reply, you must support your assertions with at least 3 outside sources (other than the text and course materials) and cited in current APA format. Acceptable sources include: books, legal cases, articles, the Bible, etc. Sources should be more substantial than basic internet dictionaries.
Jordan J. Wrote:
PROPERTY
As an attorney my old friend Barney requested my help, because he has run into some legal issues regarding his personal property. Barney and I use to attend the same church in Raleigh, NC and he is now a retired deputy in this town. One of his legal issues involves a lender foreclosing on his property in the mountains of North Carolina that he purchased with three of his friends as joint tenants with a right to survivorship whom all have passed away now. One of the friends left his interest in the property to his son who took a loan out on that interest and defaulted on the loan. Which is the reasoning the lender is attempting foreclosure on the property. When dealing in the ownership of land under joint tenancy, all are co-owners of equal shares and may sell their shares without the consent of other owners (Kubasek, Brennan, & Browne, 2012). Although, their interest can be attached by creditors, but upon the death of a joint tenant, his or her interest is divided equally among the remaining joint owners (Kubasek, Brennan, & Browne, 2012). In common law while both joint tenants are alive they own the whole estate together with equal share, but at the death of one joint tenant, the survivor owns the whole estate alone (Orth, 2012). The individual share is neither devisable nor inheritable and it is said to disappear at the death of its owner (Orth, 2012). In light of this doctrine of joint tenancy under this common law I feel I have a strong case against the lender attempting foreclosure on Barney’s property.
Another issue with this mountain property that Barney own is that someone has constructed a little cabin on his property and has been living in said property openly and notoriously for about 20 years. Under the doctrine of adverse possession of real property in general terms requires the elements of adverse, hostile, open, notorious, visible, exclusive and continuous ownership to exist for a statutory period before the statute of limitations will bar the owner’s suit to recover the property (Gerstenblith, 1988). Although these elements are often considered separate, but the fact is to require the adverse possessor to treat the property as would a true owner so as to give notice to the owner and the community of the adverse possessor’s claim to the property (Gerstenblith, 1988). The true owner exercising reasonable diligence is hence informed that a cause of action has accrued, in which he or she can ignore only at the risk of losing title to the property (Gerstenblith, 1988). In many courts through common law and previous case law “if only one party is at fault-the adverse possessor by taking in bad faith or the owner by unnecessarily delaying longer than the statutory time period after receiving notice of the location of the property-then the innocent party prevails (Gerstenblith, 1988).” In another sense an equally significant purpose of the doctrine may be used by analyzing those situations in which the actions of both parties are innocent (Gerstenblith, 1988). The fact that the good faith possessor triumphs over the diligent owner reveals that when ethical considerations are equivalent and commercial certainty becomes the critical factor (Gerstenblith, 1988). This is not to punish the original owner for failing to use the property efficiently or being inattentive in the care of the property, but to acknowledge the good faith possessor who relied on a good title to the property and possessed it for a sufficient period of time as prevalent, so that both commercial activity and ethical conduct may be protected and encouraged (Gerstenblith, 1988). With this information of this doctrine of adverse possession we may not have a strong case, but in the midst of all these issues confronting Barney I remind my friend to keep his faith in our Lord and Savor Jesus Christ just as we study and believed in the days we attended church together. In my conversation with Barney I discussed the bible scripture from Romans 1:16-17 “For I am not ashamed of the gospel of Christ, for it is the power of God to salvation for everyone who believes, for the Jew first and also for the Greek. For in it the righteousness of God is revealed form faith to faith; as it is written, “The just shall live by faith.” (Nelson, 1990).”
Barney has another property legal issue concerning the condemnation attempt of his beach house in Carolina Beach, NC by the Nickelodeon Family Resort. Nickelodeon Family Resort are making the claim that they can use eminent domain to take his property, because of the new business and jobs this will bring to the community. Under eminent domain the government has a constitutional right to take private property, upon payment of just compensation, for a purpose that will benefit the general welfare (Kubasek, Brennan, & Browne, 2012). This taken can be by any level of government or in limited cases by private companies fulfilling a public or governmental function (Kubasek, Brennan, & Browne, 2012). If the court determines that the government or private company purpose is legitimate then the courts determine the fair market value to be paid to the property owner (Kubasek, Brennan, & Browne, 2012). We may have a strong case especially with me pressing the issue of the public use clause under the eminent domain doctrine.
In the legal matter concerning Barney’s 1963 Ford Galaxie that was stolen, has now been put in a Classic Car Show by a man who purchased this car from a used car dealership in Kingston, NC. The man from the car show wants $5,600 for Barney to get his car back even after explaining that this vehicle was stolen. This man and the used car dealership claims to have no knowledge of this vehicle being reported stolen. Which I find hard to believe, since this dealership should have acquired the original/duplicate title of this vehicle in a trade or purchase agreement. The title which is ownership of property and this title passes when the acquiring party gives some consideration to the seller in exchange for title to the property (Kubasek, Brennan, & Browne, 2012). In some cases pending the state these changes of ownership must be registered with a government agency (Kubasek, Brennan, & Browne, 2012). Under the lost property clause in the involuntary transfers of personal property doctrine this is property that the true owner has unknowingly left somewhere and have no way knowing how to retrieve the property (Kubasek, Brennan, & Browne, 2012). In some states the law requires that before becoming the owner of lost property the finder must place an ad in a newspaper that will give the true owner notice that the property has been found (Kubasek, Brennan, & Browne, 2012). Depending on the type of property they may have to leave the property with the police for a statutorily established reasonable period of time as well. With all of these factors in our favor we will have a strong case in winning Barney’s car back.
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