Response

this assignment is a respond to Michael McCants report below.

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.

Michael Report on Property
The property issues that Barney is currently facing seems a little extreme and one would wonder why he would have moved away from Mayberry, but nonetheless, Barney is facing a couple of different situations that need to be addressed. The different issues of the mountain property, the beach property and the vehicle will be addressed in separately and independent of each other.

Mountain Property – Foreclosure

Barney’s claim to the land being “sole owner” of the land in North Carolina is not valid. According to North Carolina’s General Statues chapter 31 entitled Wills:

Any testator, by the testator’s a will duly executed, may devise or dispose of all real and personal property which the testator shall be entitled to at the time of the testator’s death, if not devised or disposed of, would descent or devolve upon the testator’s heirs at law… (NC General Statues Ch. 31-40)

In addition, in Chapter 41 of the North Carolina General Statues also state:

Except as otherwise provided herein, in all estates, real or personal, held in joint tenancy, the part of share of any tenant dying shall not descend or go to the surviving tenant, but shall descent or be vested in the heirs… (NC General Statues Ch.41-2)

Therefore, even though Barney had the “right of survivorship”, the portion of the land that was owned by Andy still went to Opie. After Opie defaulted on the loan, the bank had every right to foreclose on the property and therefore Barney, to get the property out of foreclosure, needs to pay the bank the money that is owed to them. The good news, now that the bank owns Opie’s part of the land, as soon as Barney pays the debt on the land, he would become the sole owner of the land, by virtue of documentation.

Mountain Property – Ernest’s Claim to the land

Now that we have determined that Barney, would be the owner of the property once he pays the bank, the fact of dealing with Ernest is the next topic. Ernest has been living on the land “openly and notoriously” for 20+ years. Based on a case dealing with adverse possession, a person that is living on the land in an “actual, open, hostile, exclusive and continuous” (Dayton, 2006) manner is able to take ownership of the land. However, the fact that Ernest didn’t show any hostility until very recently, the case for the hostility part would disappear and history shows that the plaintiff, Barney in this case, would be awarded ownership of the property (Pegg V. Jones, 2007).

Beach Property – Eminent Domain

The Fifth Amendment to the Constitution says ‘nor shall private property be taken for public use, without just compensation.’ This is a tacit recognition of a preexisting power to take private property for public use, rather [329 U.S. 230, 242] than a grant of new power. It imposes on the Federal Government the obligation to pay just compensation when it takes another’s property for public use in accordance with the federal sovereign power to appropriate it. (U.S. v. Carmack, 1946)

The Fifth Amendment is very clear that is being for “public use”. A Nickelodeon Family Resort would not be considered a “public use”, but rather a private property that is owned by Nickelodeon. However, in the case of Poletown Neighborhood Council v. City of Detroit, Michigan allowed the property to be taken by General motors because “the public would benefit from the economic revitalization a new plant would bring to the community” (Poletown Neighborhood Council v. City of Detroit, 1981). If the town authorities could prove that the new resort would bring enough economic growth to the area, the local government can seize the beach house, as long as Barney was compensated at the fair market value.

Vehicle – Theft

The theft of Barney’s vehicle by “Carl” is tragic. If the case were to end here, then Barney would only need to contact his insurance company and claim the theft of the vehicle to recover from the loss. It would not be recommended that Barney try a civil suit against Le Nez as the evidence against Le Nez is circumstantial at best (Romano, 1999). Barney didn’t previously know Carl, therefore the person that took the car could have obtained a uniform and falsely presented himself as Carl. The fact that Le Nez did have a previous employee named Carl, and the fact that he recently quit is circumstantial. Therefore, it would not be recommended that Barney try any case against Le Nez.

Vehicle – Recovery of stolen property

The fact that the car was found 3 weeks later at a classic car show is amazing, but nonetheless still tragic. The circumstances in which the car arrived there, in summary, is the car was stolen, taken to a used car lot, where it was traded for a 1967 Mustang, and then later sold to the person that is now in control of the car. According to the Good Faith Purchasers for Value, the current controller of the car, the person that has it at the car show and had bought it for $5,600, is now the legal owner of the car. This assertion is made based on the Uniform Commercial Code 2-403 in which it states “When goods have been delivered under a transaction of purchase the purchaser has such power even though …the delivery was procured through fraud punishable as larcenous under the criminal law” (U.C.C. § 2-403).

Summary and Spiritual Perspective

To summarize, Barney legally would be entitled to the mountain property, he would lose the beach property but would get fair market value for it, and he would lose his vehicle, but insurance should take care of him. The only issue outstanding is the fact that Ernest is still living on the mountain property. The Bible tells us “So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets” (Matthew 7:12, ESV). This verse would mean that Ernest has been living on the land for more than 20 years and has done no other harm to Barney. Barney has not been on or near the property for more than 20 years. Would it really be worth going to court over a property that Barney hasn’t been on in over 20 years and has no interest in moving to? I would suggest that Barney take a moment and contact Ernest and try to strike a deal with him. Barney’s only interest in the land is the creek. To make Barney whole, one could argue that if Ernest were to pay for the bank fees to get it out of foreclosure and pay 25% of the fair market value, then Ernest could then be deeded the property, with the caveat that Barney be allowed on the land from time to time to go fishing. This would not only make Barney whole again, it would legally transfer ownership of the property to Ernest and may save a friendship. Therefore, that would be showing that one person, living a Christian life, could still follow the law, be made whole, and still be showing love towards one another.

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