As Martin’s friend and attorney, I would advise him that he is the sole owner of mountain property. Since the property was purchased as a joint tenancy with a right of survivorship, Martin is now the only living tenant. Right of survivorship automatically divides the interest of the deceased tenant equally among the remaining tenants, until there is only one. Peter evidently misunderstand the right of survivorship when he indicated in his will that his share was to be transferred to his son Andrew. According to the text, under joint tenancy, all are co-owners of equal shares and may sell their shares without the consent of other owners. Their interest can be attached by creditors ( , p. 354). Since Peter never sold his share, Andrew has no claim, and therefore the creditor has no case, since the property in question was never legally Andrew’s. I would advise Martin that Otis has probable reasoning to believe he is in the right and North Carolina law could possible side with Otis in this case.
Under North Carolina Adverse Possession Laws, if the occupant has resided on the property uncontested for a period exceeding twenty years he may be granted the title. In addition, it has been over 20 years since Martin had checked on the property. The justification for adverse possession in North Carolina is that it gives title to the person who gives a beneficial use to the land. Otis has been utilizing the land openly and publicly, this can be quantified by him building a residence on the property, thus giving him statutory period for adverse possession. If Martin had checked on the property over the years, he would have noticed Otis was trespassing and could have contacted the authorities to remove him if he refused.
In reference to Martin’s legal rights with his beach house, I would advise Martin to file an appeal to the city taking his property under eminent domain. In order for eminent domain to be upheld, the property must be used for the good of the public, and not for transfer to another private party. In Kelo v. New London, Justice Stevens states “On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.”(p. 361 ). Since the Tar Heel Family Resort is most likely a private venture, it clearly is not intended for public use.
Public use would include parks, public transportation, museums, etc. Although the resort will be bringing additional jobs and tax revenue to the city, Martin’s house could only be seized by the city in this scenario if the house was beyond repair. In Berman v. Parker (1954), the court allowed the District of Columbia to establish eminent domain over personal housing that was beyond repair to construct public use facilities with the remainder of the land to be sold to private parties in order to generate low-cost housing. I would advise Martin that the city has no right to condemnation of his property under law and the court system would rule in favor of his appeal, just as it has in the past.
I would first advise Martin to contact the police and file a report if he had not done so. I would also have Martin contact his insurance company, they may be willing to lend a hand in this scenario to prevent having to pay Martin the settlement cost if he had full coverage. I would then refer Martin to:
NCGS 25-2-403. Power to transfer, good faith purchase of goods; “entrusting” 1. (1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though
(a) the transferor was deceived as to the identity of the purchaser, or
(b) the delivery was in exchange for a check which is later dishonored, or
(c) it was agreed that the transaction was to be a “cash sale,” or
(d) the delivery was procured through fraud punishable as larcenous under the criminal law.
(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business. (3) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law. (4) The rights of other purchasers of goods and of lien creditors are governed by the articles on secured transactions (article 9) and documents of title (article 7).
Benjamin committed the act of larceny when he took Martin’s car. Larceny is a matter of state criminal law, so the definition may vary slightly by state, but it can generally be defined as the secretive and wrongful taking and carrying away of the personal property of another with the intent to permanently deprive the rightful owner of its use or possession. ( p. 157). The real question is, who is responsible for accepting these stolen goods? The above NC law states that the car dealer could be held responsible for accepting stolen goods without proof of ownership. The car dealer should not have accepted the car without a title in hand or written/verbal confirmation from the lien holder. Martin will most likely have to sue the car dealer in order to gain control of the car if the police do not force the stolen property to be returned to the rightful owner.
Satterlee, A. (2013). Organizational Management and Leadership: A Christian Perspective (2nd Edition). Raleigh, NC: Synergistics International Inc.