Although the existence of a public restriction on the use of real property is not an encumbrance rendering the title to real property unmarketable, an existing violation of such an ordinance is an encumbrance within the meaning of a warranty against encumbrances.
Defendant builder agreed to construct a house and to convey the house and lot to the homeowners. The builder agreed to convey a good and marketable title, free of all encumbrances. The builder conveyed the house and lot to the homeowners by warranty deed. The homeowners discovered that the lot was narrower than the builder had represented. The house violated side line requirements of both a city ordinance and a restrictive covenant of the subdivision. The homeowners purchased a strip of property adjacent to the lot in order to bring the house and lot into compliance with the ordinance and covenants. They sought to recover the price of the strip of land from the builder. The trial court concluded that the existence of the ordinance and the failure of the builder to comply with its provisions did not constitute an encumbrance that prevented the builder from giving a deed that was both marketable and free from encumbrances. The court reversed the trial court's judgment and remanded the matter for further proceedings.
Whether an existing violation of the minimum side lot requirement of a city ordinance constituted an encumbrance within the meaning of the covenant against encumbrances in a warranty deed?
An encumbrance has been defined as any burden or charge on land and includes any right existing in another whereby the use of the land by the owner is restricted. The existence of a public restriction on the use of real property does not constitute an encumbrance within the meaning of a covenant against encumbrances. A restriction upon the use which may be made of land, or upon its transfer, which is imposed by a statute or ordinance enacted pursuant to the police power, such as a zoning ordinance or an ordinance regulating the size of lots, fixing building lines or otherwise regulating the subdivision of an area into lots, is not an encumbrance upon the land within the meaning of a covenant against encumbrances being distinguishable in this respect from restrictions imposed by a covenant in a deed. Although the existence of a public restriction on the use of real property is not an encumbrance rendering the title to the real property unmarketable, an existing violation of such an ordinance is an encumbrance within the meaning of a warranty against encumbrances.