Our case study opens painting a picture of a law enforcement officer that has decided to retire after many years of service as a deputy in a small town in North Carolina and a detective in Raleigh. Martin, our law enforcement officer appears to be less than adequate in his occupation, however, he has been able to save his earnings and invested his money wisely in prime North Carolina mountain real estate and a second home on coastal property in North Carolina.
After many years of working Martin just wants to enjoy the fruits of his labor, but obstacles have arisen that has prevented him from reaping the benefits of his real estate and loss of his prize possessions. Martin has sought my legal advice as his attorney and friend as how we can address these serious unfortunate events that has recently occurred in Martin’s life as it pertains to his mountain real estate, second home on the coast and the loss of personal property. Mountain Property
Martin began to share with me the litany of issues that he was having and started disclosing information about his mountain property. He revealed that the property was purchased 31 years ago, as joint tenants, with three of his friends, Peter, John and Thomas who have since passed away. However, Peter on his passing bequeath his portion of the property to his son Andrew, and in this event Andrew used his allotment of the property as collateral for a personal loan that he defaulted on.
When Martin was made aware of the issue that the lender wanted to foreclose on the property he contacted an attorney friend that is now handling the case. On learning the I proceeded to explain why it was a good idea to buy this property with his friends and the ramifications of having a joint tenancy with rights of survivorship. Shared ownership gives individuals the opportunity to own property that they may not have been able to afford by themselves especially in times of inflationary property prices.
This agreement also permits upon death of any of the joint owner’s transference of equal proportions of the property to the surviving co-owners. Nonetheless, joint tenancy is particularly beneficial when property is transferred from one party to another principally in families to escape probate and expensive legal fees (Conway, 2008). Albeit, Peter should’ve consulted with his co-owners to enter a unilateral severance of the joint tenancy with rights of survivorship agreement and subsequently formed a tenancy in common giving him the rights to will his percentage to Andrew.
Therefore, I would advise Martin that the survivorship agreement is still intact, making him the last surviving tenant, however, Andrew’s portion that was bequeathed to him by his father would be void in my estimation and therefore, the foreclosure should be argued based on Peter was not a legal owner (Conway,2008). Additionally, Martin mentions that he has not been to the property in 20 years, and when he decided to drive up to the mountain to enjoy some fly-fishing a bullet raced past his heads, when he approached the property.
Otis promptly told him to get off his property that he has lived on for 20 years, even despite Martins declaration of possessing the deed to the property. Once again, I share with Martin, that Otis believes that he is the rightful owner of the property through adverse possession because he has lived on the land for 20 years openly and notorious (Kubasek et al. ,2016). Furthermore, I explained to Martin that under North Carolina case law that an adverse possessor can claim title to the land if they have lived on the land for 20 years or more in an “actual, open, hostile, exclusive and continuous” manner (N. C. Lawyers Weekly Staff, R, 2006).
Nevertheless, it may seem unfair that Otis may now own Martin’s land legally, the rationale for this law is to prevent property owners from abandoning their land and reducing property value and marketability of the real estate. In essence, this should motivate owners to maintain their property and prevent squatters from laying claim to their land (Baker, Miceli, Sirmans, & Turnbull, 2001). As Martin’s friend and sister in the Lord, I shared that he made a wise decision when investing however, the wise decisions was essentially dismantled by a lack of stewardship over his investments.
For Martin was a passive tenant with the co-owners of the property and was not involved in all the financial matters as it relates to the property. Likewise, I advise Martin that he should have made frequent visits to the property over the years. The word speaks of poverty coming like a prowler when we sleep, slumber and fold our hands, (Proverbs 24:33-34) Hence, the reason why Martin is now engaged in foreclosure proceedings spurred on by Andrew, and the loss of property due to an adverse possessor.
Coastal Property At this point, Martin begins to share that after he left the mountain property he headed to the beach property to noticed his neighbor’s homes were being torn down and discovered an erected sign next to his beach home that read the “Future home of the Tar Heel Family Resort”. He then noticed that on his front door a letter was posted communicating that the city authorities will be taking his property by eminent domain to create new businesses and jobs in the community.
Not unlike the mountain property Martin is now facing another dilemma in which he is uninformed and reacting to an active developing issue. Therefore, I proceeded to explain that eminent domain or taking clause is a constitutional right granted by the Fifth Amendment that “nor shall private property be taken for public use, without just compensation” (Miceli,2015).
Similarly, to Martin’s situation, I shared the Kelo v. New London case which was one of the most controversial cases concerning eminent domain, that precipitated protest across the U. S. Likewise, the facts from the Kelo’s case corresponds with Martin’s issue with the government seizing private property to sell to private developers, hence is where Kelo felt that New London was overstepping and violating the Fifth Amendment by selling the private property to a private developer instead of using it for public use (Kubasek et al. ,2016). However, the decision ruled in favor of New London for the reason that, the city seizes the property to promote economic development and not to benefit any private individuals or groups (Kubasek et al. ,2016).
What made this decision so controversial is the scope that government powers have as it pertains to eminent domain “public use”. Many lawyers and scholars have argued that “public use” should encompass projects that the public has free access to such as highways, parks, and museums and not to private developers or businesses (Miceli,2015). In a view of the fact that Martin is late to the party once again, and all his neighbors agreed to take the fair market price for their homes evident by the demolition around his home, my advice is to settle with the city.
Admittingly, if Martin was more present and knew about the city’s plans earlier to take his property and his neighbors, he may have been able to take the city to trail and fight for their property. The word encourages us that when we are faithful or trustworthy over little things he will reward us and put us in charge over many things, (Matthew 25:23). Martin was blessed to have a mountain house and a beach home, but because he was not faithful in maintaining and keeping up with the affairs of his business he allowed the enemy through his negligence to steal his blessings.
Personal Property Meanwhile, Martin’s last dilemma was the loss of his prize possession, his 1966 Pontiac GTO. He explained that he handed over his car to Benjamin, who he thought to be a valet at The Riverboat Restaurant, and on returning to retrieve his car he was told that the valet service was not working tonight as well as Benjamin had quit the day before. Afterwards, Martin reported his car stolen and it was found 3 weeks later at a Classic Car Show in Mount Olive. Hence, the new owner had purchased the car from a used car dealership in Kingston, North Carolina.
Whereas the dealership traded their 1967 Mustang with a young man matching Benjamin’s description for the 1966 Pontiac GTO. To say the least, the new owner is not willing to give Martin back his car unless he reimburses him 5,600. 00, the money he paid for the vehicle. Although, Martin has been involved in a series of unfortunate events that could’ve been avoided if he was more attentive to his real estate ventures, however, this case was an incident that could have happened to anyone. Benjamin clearly and intentionally stole Martin’s personal property and should be prosecuted when found (Exodus 20:15).
As I explained to Martin because he has the title for the car, he is the rightful owner and the execution of a sale would entail consideration from the seller in exchange for the car’s title. Therefore, because the car was still legally registered in his name and not transferred from him to the current owner the (good faith purchaser) the transaction was executed with a void title and Martin would have standing in proceeding to retrieve his car through filing a formal complaint through the justice system (Kubasek et al. ,2016).
In addition to what has been said the justice system will usually favor the original owner unless the original owner is found to have omitted or falsified paperwork with the good faith buyer (Sinclair,2014). Furthermore, the common law and civil codes underscores that “one cannot convey greater rights than what one has” (Schwartz & Scott, 2011). Even if good faith buyers are not aware that the property purchase was stolen they are liable for conversion, and are responsible to return the property to the legal owner because they are in possession of a void tile (Kubasek et al. 2016).
As I wrap up my meeting with Martin my parting advice is that he has to be diligent in protecting his assets and honor the blessings that God has granted him because the word warns us that we should be vigilant “The thief comes only in order to steal and kill and destroy. I came that they may have and enjoy life, and have it in abundance” John 10:10 (Amplified Version).
