Thomas purchased a property in Fairfield County using a general warranty deed. The deed did not mention an existing right-of-way easement that a neighbor had been using for 20 years, which was properly recorded in the town land records prior to Thomas's purchase. Thomas later discovers the easement and demands that his seller compensate him for breach of the covenant against encumbrances. The seller argues that because the easement was recorded and Thomas had constructive notice, there was no breach. Under Connecticut law, which position is most legally supportable?
Correct Answer
C) Thomas's position, because the covenant against encumbrances is breached when an undisclosed encumbrance exists at the time of conveyance, regardless of recording
Under Connecticut law and the prevailing majority rule, the covenant against encumbrances in a general warranty deed is a present covenant that is breached, if at all, at the moment of conveyance — not when the grantee later discovers the encumbrance. The covenant warrants that the property is free from encumbrances except those expressly excepted in the deed. The existence of a recorded easement that was not excepted in the deed constitutes a breach of this covenant at the time of delivery, regardless of whether Thomas had constructive notice through the recording. The recording of an encumbrance provides constructive notice for purposes of the recording statutes (protecting subsequent purchasers from the encumbrancer), but it does not excuse the grantor's breach of the covenant against encumbrances in the warranty deed.
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Related Topics & Key Terms
Key Terms:
Related Concepts
Real property is immovable land and anything permanently attached to it, while personal property (also called chattels) is movable.
Tenancy by the entirety is a form of co-ownership available only to married couples that includes the right of survivorship and protection from individual creditors. Neither spouse can unilaterally sell or encumber the property.
Tenancy in common is a form of co-ownership in which two or more persons hold separate, undivided interests in property without the right of survivorship. Each owner can hold unequal shares and can independently transfer their interest.
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