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Property Keyed to Rabin
Nelson v. Anderson
Facts
Nelson (Plaintiff) contracted to sell his home to Anderson (Defendant). Plaintiff was to deliver a warranty deed conveying marketable title, free and clear of all encumbrances except those mentioned in the contract. The title insurance company’s report revealed that the property violated a restrictive covenant that required all the lots in that subdivision to be set back at least ten feet from the property lines of adjoining owners. Plaintiff obtained written assurances from the title insurance company that it would insure the violation for Defendant and subsequent purchasers. Defendant nevertheless refused to close and bought another property instead. Plaintiff sold to another buyer but at a lower price. Plaintiff sued for damages. Defendant counterclaimed for recovery of the deposit. The trial court granted Defendant summary judgment, holding that Plaintiff failed to deliver unencumbered title. Plaintiff appealed.
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