---
title: "Marketable Title"
type: Legal Rule
source: https://casebriefly.com/legal-rules/marketable-title
---

# Marketable Title

A title free from reasonable doubt as to its validity, free from encumbrances and defects, that a reasonable and prudent buyer would accept. Implied in every land sale contract unless disclaimed.

## Definition

Marketable title is a title that is free from reasonable doubt as to its validity, free from liens, encumbrances, and defects that would cause a reasonable buyer to hesitate before purchasing. Every contract for the sale of real property contains an implied obligation that the seller will deliver marketable title at closing, unless the contract expressly provides otherwise. If the seller cannot deliver marketable title, the buyer may rescind the contract, recover damages, or seek specific performance with an abatement in price.

A title is unmarketable if it exposes the buyer to the risk of litigation. Common defects rendering title unmarketable include: outstanding mortgages or liens, boundary disputes, breaks in the chain of title, adverse possession claims that have not been quieted by court action, restrictive covenants (in some circumstances), encroachments, easements not visible from inspection, and zoning violations that affect current use. However, zoning restrictions standing alone do not generally render title unmarketable; only actual violations of zoning ordinances do.

It is critical to distinguish marketable title from insurable title. A title insurance company may be willing to insure a title that is technically unmarketable if the risk of loss is low. But insurable title and marketable title are not the same thing, and a seller's obligation to deliver marketable title is not satisfied merely by offering title insurance. The buyer is entitled to a title that is actually free from reasonable doubt, not merely insured against loss. The question of marketability is determined as of the closing date, not the date of contract.

## Elements

- Title must be free from reasonable doubt as to its validity
- No outstanding liens, mortgages, or encumbrances (unless buyer agreed to take subject to them)
- No breaks or gaps in the chain of title
- No threat of litigation from competing claims
- Implied in every land sale contract unless expressly disclaimed
- Marketability is assessed at the time of closing

## Key Case

Lohmeyer v. Bower, 170 Kan. 442 (1951)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Lohmeyer v. Bower | 170 Kan. 442 (1951) | Held that an existing zoning violation (not merely a zoning restriction) rendered title unmarketable and entitled the buyer to rescind. |
| Conklin v. Davi | 76 N.J. 468 (1978) | Addressed the distinction between marketable title and insurable title, holding that a seller's obligation to deliver marketable title is not satisfied by offering title insurance. |
| Hebb v. Severson | 32 Wash. 2d 159 (1948) | Held that an encroachment by a neighboring structure rendered the seller's title unmarketable even though the encroachment was minor. |

## Exam Tips

- Remember that marketable title is implied in every contract. If the question does not mention marketable title, it is still a requirement unless expressly waived.
- Distinguish between zoning restrictions (do not make title unmarketable) and zoning violations (do make title unmarketable).
- Marketable title and insurable title are different concepts. A title can be insurable but still unmarketable.
- The time for assessing marketability is at closing, not at the time the contract is signed. The seller has until closing to cure defects.

## Common Mistakes

- Confusing zoning restrictions with zoning violations -- merely being subject to zoning does not make title unmarketable, but violating a zoning ordinance does.
- Assuming that title insurance satisfies the seller's obligation to deliver marketable title -- it does not.

## Mnemonic Or Memory Aid

Marketable = a title a Reasonable buyer would accept without fear of lawsuits. If a prudent person would hesitate, the title is unmarketable.

## Related Rules

- recording-acts-race-notice-race-notice
- bona-fide-purchaser-doctrine
- warranty-deed-vs-quitclaim-deed

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Source: [Marketable Title — CaseBriefly](https://casebriefly.com/legal-rules/marketable-title)