Running head: DB FORUM 2 – THREAD 1
Martin is obviously “having a bad day.” Therefore, I will start first with his idea of being
a “shrewd investor.” The faster he comes to recognize his pride; the more quickly we will be able
to come to agreement of which of these issues to tackle and which are lost causes. In all honesty,
one cannot claim to be shrewd if they neglect the continuing details of the investments. While
that may sound harsh, I’ve found bold honesty, assessment and open dialog in business to be a
key in reaching the strongest and best results. Separating the business vs the emotional issues
allows teams to get to a mutually satisfactory meeting of the minds.
The problem for Martin is in his lack of interest in the property, particularly after the
death of his friends. Proverbs 2:11, claims, “Discretion will watch over you, understanding will
guard you” (ESV). In the same way, using discretion in our own affairs… watching over the
things we care about… will protect us too. Martin failed to do that.
First, regarding the mountain property, we have two situations: 1) joint tenancy with right
of survivorship; and 2) adverse possession.
While the previous owners may not have understood the legal ramifications of the way
they chose to title the property, that mis-understanding causing them to leave their “share” of the
property in their will, does not protect their heir. Considering the difficulty of real estate loans, it
is a shame that the young man was able to obtain a loan using his supposed interest in the
property as collateral. The popular Report on Business column in The Globe and Mail by Tim
Cestnick identifies joint tenancy with right of survivorship means:
that when an individual joint tenant dies, the deceased person's
interest is automatically distributed to the remaining joint tenants.
Think of this as a "winner takes all" game. The asset will pass to
DB FORUM 2 – THREAD 2
the surviving owners outside of the probate process. The result?
Probate fees are avoided (Pg. B11).
Therefore Martin does have standing to win his claim against the lender. Still, the lender
could win if they prove that Andrew had a Color of Title, a provision under the Adverse
Possessor Law that indicates a statutory title to the land after seven years if “the adverse
possessor has a document or reason to believe that the land is legally theirs” (Findlaw.com,
2015). However, the bank would likely be hard pressed to prove this as there has been no
indication that Andrew ever took possession of the land, only an interest in the value of its title.
However, in the case of Otis, it is likely that his old friend knew that one or more of the
men who owned the property had passed. Whether he knew of Martin’s share is irrelevant. If he
did, he likely thought that Martin had left the little mountain town to become an important
deputy in the city, and therefore might forget his old home and claim. Indeed, when Martin
showed up 20 years later Otis knew the right language to use, “he had lived on the property
openly and notoriously for some 20 years.”
Adverse possession was created hundreds of years ago when hand-
scrawled property records could more easily be lost or damaged.
Allowing for adverse possession kept land in productive use when
ownership was unclear, or, for example, the owner died with no
heirs (Palm Beach Post, Pg. 1A).
In North Carolina, the minimum length of time a “squatter” must maintain continuous
possession of property to claim is 20 years; and since Martin had not been to the property in
more than 20, we will have to work to prove his right to claim it back. Had he used discretion in
DB FORUM 2 – THREAD 3
watching over his property, he would have known about Otis raising a cabin in the center of the
land and would either have given him permission or not, but the decision would have been his.
Charles Gallagher III, a Florida real estate lawyer, says of adverse possession, that it
generally:
“requires possession that is actual, open, notorious, exclusive,
hostile, under cover of claim or right, and continuous and
uninterrupted for the statutory period… But satisfying the
numerous possession elements can often be tricky because it's not
enough just to be present on the property (Estrin, 2012).
One can imagine Otis might have first moved into the existing cabin, ready to run at a
moment’s notice. As the years passed with no one taking issue of his open possession of the land,
he likely would have gotten more bold, even building a cabin more to his liking and comfort. He
was ready when Martin returned protecting his home in a hostile manner, although that “hostile
possession” does not mean what most people believe it to be. In fact, it is “incompatible with the
actual owner's use and ownership of the land. Generally, this must mean that the owner has not
given the adverse possessor permission to use the land” (Findlaw.com, 2015).
Given that Martin has not been back to the land in over 20 years and Otis claims to have
used the land openly for that length of time, the only option is to try to prove that Otis has indeed
used “the land continuously like an actual owner would” (Findlaw.com 2015).
My question to Martin is whether he believes he can prove his case. If not, it is not likely
going to be worth the legal and court fees to fight. Measure that against the value of the land.
Measure that against his standing in the community: does he really want to be the guy who
evicted who they will perceive to be the rightful owner of the land? Perhaps the best he could do
DB FORUM 2 – THREAD 4
is to ask Otis to pay something in exchange for an actual general warranty deed. How strongly do
you feel about this Martin, and how long are you willing to fight?
Next is the coastal property and the issue of eminent domain. The law is clear that land is
taken is for “public use” (Findlaw.com, 2015). Public use does not necessarily means roadways
or parks, but an increase in economic vitality. Still Martin can “contest both the proposed taking
and the amount of compensation offered” (Findlaw.com, 2015).
My recommendation, therefore, is that we ask for a hearing on both the seizure and ask to
negotiate the monetary award offered. Having the public official state to him that he “would
receive the full market value for his property in compensation” should be verified.
Finally, onto the stolen vehicle, the man who purchased the car from the used car dealer
must sue the dealer to get his money back. He will win because the dealer cannot produce a good
title. In addition, the dealer may be charged with a Class H felony according to NC General
Statute § 20-106. So yes, you will get your car back.
On that happy note Martin, I will encourage you to study the Word, particularly the words
found in Proverbs, daily reading one chapter and starting over again the following month,
perhaps from a different version. Much wisdom awaits you in those passages. Rather than acting
on impulse and through pride, perhaps you will gain a greater understanding of the authority you
hold as a child of God.
DB FORUM 2 – THREAD 5
References
A Section (2013, January 26). Bank moves to evict boca mansion squatter; bank has deed, but
man claims 'adverse possession' on estate. Palm Beach Post, pp.1A. Retrieved from
http://www.lexisnexis.com.ezproxy.liberty.edu:2048/lnacui2api/results/docview/docview.
do?
docLinkInd=true&risb=21_T21452793388&format=GNBFI&sort=RELEVANCE&start
DocNo=1&resultsUrlKey=29_T21452793395&cisb=22_T21452793394&treeMax=true
&treeWidth=0&selRCNodeID=38&nodeStateId=29126601en_US2E9A18CFF75C44F28
6221C9F8600BB98,1&docsInCategory=215&csi=144576&docNo=3
Cestnick, T. (2004). Report on business. The globe and mail. Canada: CTVglobemedia
Publishing Inc. Retrieved from
http://www.lexisnexis.com.ezproxy.liberty.edu:2048/lnacui2api/results/docview/docview.
do?
docLinkInd=true&risb=21_T21452568691&format=GNBFI&sort=RELEVANCE&start
DocNo=1&resultsUrlKey=29_T21452568695&cisb=22_T21452568694&treeMax=true
&treeWidth=0&csi=303830&docNo=8.
Estrin, M. (2012, August 2). Real estate watch: can you squat to own a home? San Jose Mercury
News. Section: real estate. Retrieved from
http://www.lexisnexis.com.ezproxy.liberty.edu:2048/lnacui2api/results/docview/docview.
do?
docLinkInd=true&risb=21_T21452793388&format=GNBFI&sort=RELEVANCE&start
DocNo=1&resultsUrlKey=29_T21452793395&cisb=22_T21452793394&treeMax=true
DB FORUM 2 – THREAD 6
&treeWidth=0&selRCNodeID=38&nodeStateId=29126601en_US2E9A18CFF75C44F28
6221C9F8600BB98,1&docsInCategory=215&csi=313960&docNo=1.
Findlaw.com (2015). Challenging eminent domain. Thomson Reuters. Retrieved from
http://realestate.findlaw.com/land-use-laws/challenging-eminent-domain.html.
Findlaw.com (2015). North carolina adverse possession laws. Thomson Reuters. Retrieved from
http://statelaws.findlaw.com/north-carolina-law/north-carolina-adverse-possession-
laws.html.
Kubasek, N. K., Brennan, B. A. & Browne, M. N. (2015). The legal environment of business: A
critical thinking approach (7th ed.). Upper Saddle River, NJ: Pearson.
Meiners, R.E., Ringleb, A.H., & Edwards, F.L. (2012). The legal environment of business (11th
ed.). Mason, Ohio: South-Western Cengage Learning.
State v Jones (2004). 358 N.C. 473; 598 S.E.2d 125; 2004 N.C. LEXIS 671. Retrieved from
http://www.lexisnexis.com.ezproxy.liberty.edu:2048/lnacui2api/results/docview/docview.do?
docLinkInd=true&risb=21_T21453084320&format=GNBFI&sort=RELEVANCE&startDocNo=1&res
ultsUrlKey=29_T21453084326&cisb=22_T21453084325&treeMax=true&treeWidth=0&selRCNod
eID=14&nodeStateId=411en_US,1,2&docsInCategory=3&csi=9113&docNo=1.
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