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24. Will the buyer be likely to prevail?
When the seller later refused to close, the buyer sued for specific performance.
The buyer thought it so unlikely that a canal would ever be built that the closing should occur notwithstanding this easement. Therefore, the buyer notified the seller on April 28 that he would expect to close on May 1.
On April 27, the seller notified the buyer that she had discovered that the land was subject to a long-standing easement in favor of a corporation for a towpath for a canal, should the corporation ever want to build a canal.
By a valid written contract executed in March, a seller agreed to sell land to a buyer. The contract stated, «The parties agree that closing will occur on May 1 at 10 a.m.» There was no other reference to closing. The contract was silent as to quality of title.
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A is incorrect. As explained above, even though the easement renders the title unmarketable, the buyer may waive the right to have a marketable title, as occurred here.
B is incorrect. The corporation does have an easement on the land and the easement does render title unmarketable. However, the corporation's rights in the land are resolved--the corporation has an easement on the property. The sale of the land will not affect the corporation's easement. As explained above, the requirement of marketable title is for the benefit of the buyer, and the buyer may waive the right to receive a marketable title. The buyer may accept the land with the easement, as the buyer did in this fact situation.
D is incorrect. This answer correctly concludes that the buyer will prevail but misstates the reasoning for this conclusion. If a contract of sale is silent as to quality of title, the court will imply a marketable title, and an easement does affect the marketability of title. Title is to be marketable at the time of closing. If a buyer discovers a defect that makes title objectionable, the buyer must notify the seller with specificity and allow the seller a reasonable time to cure the defect. In this case, however, the buyer waived the right to have a marketable title and is not asking the seller to remove the defect, so the buyer can enforce the contract.