Response to Michael McCant
My take on the various responses that Michael McCant provided on the various property issues that Barney is facing is discussed here below.
Mountain Property – Foreclosure
I agree with Michael McCant that Barney’s claim to the land being “sole owner” of the land in North Carolina cannot hold in a court of law. According to Segal (1998) an individual who owns an asset jointly with others in a joint tenancy with right to survivorship can actually bequeath his share of the estate to his dependents in a will. In this matter therefore Andy was right in passing his share of the mountain property to Opie in his will. The bank’s security interest however is up to the extent of Opie’s share in the property (Adams, 1999). Once the Bank disposes of the property after the foreclosure, it can only take Opie’s share of the property proceeds and hand over the rest of the proceeds to the other tenants or their beneficiaries. Barney in this case has two options he can pay off Opie’s loan and take over his share in the property or he can allow the bank to foreclose the property and wait for it to sell and give him his share of the proceeds. The bank in this case will only take the share that represents Opie’s claim in the property (Adams, 1999).
Mountain Property – Ernest’s Claim to the land
According to adverse possession laws of North Carolina, Ernest can actually claim ownership of the mountain property. Adverse possession applies if an adverse use tenant is wrongfully using an owner’s property without his permission, and uses it for a period of 20 years or more. The claimant must have used the property openly, notoriously and continuously during the entire period such that the public actually believes he is the real owner. He must also use the property in a manner that the owner could have used it (Weinberger & LeGrand, 2009). He must have also exhibited hostile use of the property. For Ernest to claim ownership based on hostile use he must pass the trespass test which seeks to test whether the claimant acted with the deliberate intent to obtain the property knowing another person owns it. Ernest had put up a structure on the property and had lived on it for over 20 years which is a manner of use that Barney could have done if he had been occupying the property. Ernest had lived on it openly, notoriously and continuously for over 20 years without interruption. The neighbors must have taken it that Ernest owned the property which is another factor for adverse possession claim in favor of Ernest (Weinberger & LeGrand, 2009). He passed the trespass test when he shot at Barney and demanded he leaves his property. In actual sense Barney stands no chance in court against Ernest in an adverse possession claim case. The only option for Barney is to wait for the Bank to foreclose on the property and then contact it to pay off Opie’s loan and then take over the property from the bank in a new deal ( http://www.ehow.com/info_8410328_adverse-possession-north-carolina.html#ixzz2lqiVaHwO)
Beach Property – Eminent Domain
According to the Fifth Amendment to the Constitution, the government can take land owned by a private citizen for public use. Barney should investigate the economic case surrounding the new proposed resort to find out whether it has any public benefit. If the resort will be for the public good then he can accept the compensation package. However, it is not clear from the write up that the town is facing serious economic crisis or high unemployment levels (Michael and R, 2005). This is unlike the case of Kelo v. New London, where New London was facing economic crisis which included very high levels of unemployment which the proposed development was poised to resolve and therefore this justified use of eminent domain to acquire private land belonging to Kevo and others (Michael and R, 2005). In the event he finds out that the resort will only confer private benefit to Nickelodeon Family Resort and not to solve a long standing public malaise then Barney can move to court to stop takeover of his property (Michael and R, 2005).
Vehicle – Theft –I concur with Michael McCants report on this one
According to Posch (1994) Barney cannot sue Le Nez restaurant on the claim that its former employee stole his car. Even though bailment took place when he entered the restaurant, the restaurant cannot be held liable for the car theft. The only remedy that Barney has is to approach his insurance company so that it can compensate him.
Vehicle – Recovery of stolen property- I agree with Michael McCants report on this one also
According to the Good Faith Purchasers for Value, the man who acquired the car at the car show and paid $5,600 owns it legally. In the case of Philllps v. Phillips, 4 D., F. & J. 208, a purchaser is not held liable of any offence if he purchases a property in good faith. It rightly belongs to him. Barney in this case can only repossess his former car from the man in an out of court settlement in which he reimburses the man the $5,600 since the man is the legal owner of the car at that point in time and not Barney. Going to court would be useless. (http://www.mindserpent.com/American_History/reference/1914_Bouvier/purchase_for_value.html).
Summary and Spiritual Perspective
To summarize, Barney legally would lose the mountain property if he decides to contest Ernest’s claim of adverse possession in court but could get it by agreeing to pay off Opie’s loan in an out of court settlement if the bank manages to foreclose on it. He could lose the beach property but get a good compensation for it at the prevailing rates.
From a spiritual perspective Barney should seek an amicable solution with Ernest. The Bible in Romans 12:18 encourages believers to live at peace with everyone as along as it depends on them. Barney should try and get Ernest to a negotiating table where he could urge him to agree to jointly pay off Opie’s loan and enter into a new joint tenancy with right of survivorship with him since the other claimants in the former agreement had passed on.
References
Adams, R. M. (1999). Joint tenancy: The ties that bind. Trusts & Estates, 138(12), 74-75. Retrieved from http://search.proquest.com/docview/229813325?accountid=45049
http://www.ehow.com/info_8410328_adverse-possession-north-carolina.html#ixzz2lqiVaHwO
http://www.mindserpent.com/American_History/reference/1914_Bouvier/purchase_for_value.html
Michael Corkery and, R. C. (2005, Aug 03). Eminent-domain uproar imperils projects. Wall Street Journal. Retrieved from http://search.proquest.com/docview/398978118?accountid=45049
Posch, R. (1994). Bailments – A practical legal area. Direct Marketing, 57(8), 52. Retrieved from http://search.proquest.com/docview/212758275?accountid=45049
Segal, M. A. (1998). Joint tenancy with rights of survivorship. The CPA Journal, 68(7), 34-
- Retrieved from http://search.proquest.com/docview/212278950?accountid=45049
Weinberger, A. M., J.D., & LeGrand, L. E., J.D. (2009). Adverse possession claimant must
improve, cultivate, or enclose the land sought. The Appraisal Journal, 77(4), 301. Retrieved from http://search.proquest.com/docview/199945683?accountid=45049
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