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Barney’s Debacle

BUSI 561

Brad Carlton

Liberty University

Josie Cruz-Melend

November 24, 2012

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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 Barney’s 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 individual’s 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

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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 tenant’s sons, Opie, believing he had

right to the interest in his father’s 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 Opie’s 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)

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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

Ernest’s 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 Barney’s 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 Barney’s beachfront property.

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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 London’s right to exercise eminent domain in

a case closely resembling Barney’s. In Kelo, Justice Stevens states, “…[The city’s]

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.

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The “Le Nez” Debacle and Aftermath

As it pertains to the “Le Nez” debacle, whereby Barney’s 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 doesn’t 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 Barney’s

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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 Barney’s case is simple. Trust in the Lord’s

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)

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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.