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Barneys Debacle BUSI 561 Brad Carlton Liberty University Josie Cruz-Melend November 24, 2012

2 Introduction The litany of issues facing Barney appears insurmountable. Real property issues arise from, but are not limited to, joint tenancy with right of survivorship, possible encumbrances from financial institutions, adverse possession, condemnation, and eminent domain takings. Further, personal property issues abound encircling Barneys 1963 Ford Galaxie which include theft, possible negligence by at least one entity, and sale of a motor vehicle without a title. Having these problems arise over the period of an individuals lifespan could be deemed unusually stressful in itself, but the simultaneous nature of these calamities could arguably send one on a short journey to the local mental ward. Fortunately, however, Christian counsel can be afforded Barney, and he can be assured that biblical principles will provide relevant direction as the legal matters individually unfold. Barney will do well to remember another man, named Job, who suffered a multitude of calamities at once, leaving him without family, possessions, health, and precious few friends to comfort him. In the midst of his suffering, he was still able to say in Job 1:21, The Lord gave and the Lord has taken away; may the name of the Lord be praised. (New International Version, 1984) As these issues are addressed, they will be viewed through the lens of acknowledging a God whose name deserves acclaim, regardless of personal circumstances. Real Property Issues Barney, thought to be a bungling, albeit loyal officer of the law has been granted wisdom and discernment in many things financial. Having acquired two choice real properties, he seeks to capitalize on his investments as he approaches retirement. More than three decades previous, Barney purchased interest in real property in the mountains of North Carolina with three other individuals. The estate was constructed via a co-ownership agreement known as a joint tenancy

3 with a right of survivorship. This very specific form of interest arrangement was reinstituted in North Carolina several years ago. According to the North Carolina Law Review, In its 1989-90 legislative session, the General Assembly of North Carolina restored the right of survivorship to the ancient concurrent state of joint tenancy, a right that had been abolished by legislation more than two centuries ago. The new statute, effective January 1, 1991, permits the creation of a joint tenancy with right of survivorship if the instrument creating the joint tenancy expressly provides for a right of survivorship. (Orth, 1991) As all of the other three joint tenants are deceased, conveyance flows to Barney, who holds the interest in the property in total. One of the deceased joint tenants sons, Opie, believing he had right to the interest in his fathers portion of the real property, took out a personal loan, using the property as collateral. The belief here is that Opie did not possess the authority to do so. Though Andy conveyed Opie his interest in the property, the structure of the joint tenancy super cedes Opies claim. Further, the financial institution erred by agreeing to use the property in question to collateralize the loan. Though counsel for the lending agency could argue that the agreement for joint tenancy occurred prior to the 1991 legislation, and though ambiguities surround the possibility of subsequent agreements or amendments, North Carolina General Statutes allow for the intent of the parties. The statute states in relevant part, In constituting a conveyance executed after January 1, 1968, in which there are inconsistent clauses, the court shall determine the effect of the instrument on the basis of the intent of the parties as it appears from all the provisions of the instrument. (Unknown, North Carolina General Statutes, Chapter39, Conveyances; 39-1.1, 1967)

4 Next to be addressed is the issue of adverse possession. When Barney made his first trip to the aforementioned property in over two decades, he discovered his former acquaintance, Ernest, had taken possession of the property. Ernest had constructed improvements in the form of a permanent dwelling, and displayed confrontational hostility to Barney by firing a shot in his direction and screaming at him that he was trespassing. North Carolina does allow the possessor to receive title in fee under certain circumstances. Chapter 1, Section 1-40 states that if the person in question, has possessed the property under known and visible lines and boundaries adversely to all other persons for 20 years; and such possession so held gives a title in fee to the possessor, in such property, against all persons not under disability. (Statutes, 1971) Though the temptation may arise from those who have known Barney for some time to contest possession due to his disability (incompetence), this is not the strongest means to contest Ernests claim. North Carolina law also possesses a color of title provision that must be met as well. Color of Title can be defined as the appearance of ownership of property, evidenced by possession or a document that purports to show ownership, when there is actually a defect in title. (Unknown, NoLo's Plain English Law Dictionary: Color of Title, 2012) Ambiguities remain surrounding additional verbiage relating to proper visible display of boundary markings and other requirements. However, due to the inability of the possessor to produce documentation that shows he reasonably believes he should enjoy the mountain property, it is believed that Ernest will ultimately be evicted from Barneys property, and the real estate will return to its proper owner. Unfortunately, the situation surrounding the beachfront property may not have similar outcome. Carolina Beach is using the power vested in it to seize Barneys beachfront property.

5 Eminent domain is described as the constitutional right of the government to take the privately owned real property for a public purpose in exchange for just compensation to the owner. (Kubasek, 2012) As the city has already been granted permission to proceed, there may be little that can be done to stop this taking. One could argue that the Nickelodeon Family Resort to be constructed is not truly for a public purpose, especially as the land is simply being transferred from a group of private entities (the property owners) to another private group (Nickelodeon Family Resort). This argument proves quite difficult to win, as is evidenced by the landmark case of Kelo v. City of New London. Ultimately, in an extremely unpopular ruling, the Supreme Court of the United States upheld the city of New Londons right to exercise eminent domain in a case closely resembling Barneys. In Kelo, Justice Stevens states, [The citys] determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. (Kubasek, 2012) The legal environment, such that it is, generally upholds governmental eminent domain under the Fifth Amendment. Therefore, the advice specific to this property is to accept the fair market value for it, viewing it as an exceptional return on initial investment. As Barney is gifted with financial prowess, it is reasonable to assume that he will again be a faithful steward with his increase. Barney will also be admonished to recall the words of Deuteronomy 8:18, But remember the Lord your God, for it is He who gives you the power to produce wealth, and so confirms His covenant, which He swore to your forefathers, as it is today. (New International Version, 1984) A protracted and expensive court battle would do little to enhance the wealth that has been produced via the Carolina Beach venture.

6 The Le Nez Debacle and Aftermath As it pertains to the Le Nez debacle, whereby Barneys vehicle was stolen by Carl, an individual claiming to represent the restaurant as a valet; the council will be to hold Le Nez harmless, and enjoin others who play key roles in this disaster. Though the restaurant could arguably be sued for negligence in some form, it is doubtful that a suit of this nature could be prosecuted successfully. North Carolina is a contributory negligence state, and if the restaurant could display Barney as responsible for even a minimal amount of the problem, he would be barred from recovery. Carl is the criminal and tortfeasor in this instance. Carl is to be pursued for conversion on the civil side of the law, and grand theft of an automobile on the criminal side of the law. To support the theft claim, N.A.D.A values for a 1963 Ford Galaxie sedan show $8,900.00 as an average retail price, well above the minimum of $500.00 required to pursue. (1963 Ford Galaxie Sedan) Of course, all of this has genesis in the Bailment relationship between Barney and Carl. This is defined as a relationship in which one person (the bailor) transfers possession of personal property to another person (the bailee) to be used in an agreed-to manner for an agreed-to period of time. (Kubasek, 2012) An obvious liability exists for Carl under this definition. Further liability falls on the used car dealer in Kinston. In North Carolina, transfer of title is necessary to consummate the sale of a motorized vehicle. According to the North Carolina DMV website, In NC, the DMV doesnt require a bill of sale because the notarization on titles is official recognition of the sale for used cars. You only need a bill of sale for cars bought at dealerships. (Unknown, Title Transfer Requirements for Used Cars, 2010) It can then be presumed that the dealer, which engages in the buying and selling of vehicles, knows this. Armed with this knowledge, the dealership or one of its agents knowingly received Barneys

7 Galaxie, and then traded a 1967 Ford Mustang in consideration for the Galaxie. Then, the dealer sold the Galaxie to a good faith purchaser for the sum of $5,600.00, sans title. It can then be argued that the dealer is liable under a strict liability offense. The Cornell University Law School website claims, In both tort and criminal law, strict liability exists when a defendant is in legal jeopardy by virtue of an wrongful act, without any accompanying intent or mental state. (Unknown, Strict Liability, 2010) Conclusion Oliver Wendell Holmes once stated, A law embodies beliefs that have triumphed in the battle of ideas. (Kutler, 1977) The laws of God will always reign supreme in this context. The endeavor relative to the multitude issues in Barneys case is simple. Trust in the Lords provision. In Job 42:10, the reader discovers, After Job had prayed for his friends, the Lord made him prosperous again and gave him twice as much as he had before. (New International Version, 1984) Restoration is the goal. There is no call for vindictive measures, though the temptation exists to seek them. Micah 6:8 expresses the proper attitude in all things. It reads, He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God. (New International Version, 1984)

Works Cited 1963 Ford Galaxie Sedan. (n.d.). Retrieved from NADAguides.com. (1984). New International Version. Kubasek, B. B. (2012). The Legal Environment of Business: A Critical Thinking Approach. Boston: Pearson. Kutler, S. (1977). The Supreme Court and the Constitution. New York: WW Norton. Orth, J. V. (1991, January). North Carolina Law Review. Retrieved from Lexis Nexis.com. Statutes, G. (1971). Chapter 1; Article 4; Section 1-40. Unknown. (1967). North Carolina General Statutes, Chapter39, Conveyances; 39-1.1. Retrieved from USLegal.com. Unknown. (2010, August 19). Strict Liability. Retrieved from Cornell.edu. Unknown. (2010, April 25). Title Transfer Requirements for Used Cars. Retrieved from DMVanswers.com. Unknown. (2012). NoLo's Plain English Law Dictionary: Color of Title. Retrieved from NoLo.com.