## Facts

- Sellers owned a 12.75-acre residential property in Lincoln, Massachusetts, bordering the Sudbury River.
- To avoid a legislatively authorized taking of certain wetland areas, the sellers executed and recorded a 1962 conservation restriction in favor of the Lincoln Land Conservation Trust, limiting the wetland portion to uses preserving it in its natural state.
- In 1978, the parties entered into a purchase-and-sale agreement for $400,000, with a $40,000 deposit.
- The agreement required delivery of “good and clear record and marketable title,” free of encumbrances except those specifically listed.
- The listed exceptions did not include the recorded conservation restriction.
- After discovering the restriction, the buyer refused to accept a deed subject to it and demanded return of the deposit.
- The sellers refused, arguing the restriction did not affect marketability because public wetlands laws already imposed similar limits.
- The trial court granted summary judgment to the buyer for return of the deposit, and the sellers appealed.

## Issues

1. Whether a recorded private conservation restriction not excepted in a purchase-and-sale agreement is an encumbrance that prevents delivery of “good and clear record and marketable title.”
2. Whether similar or overlapping public-law wetlands limitations negate the effect of a private recorded restriction for purposes of marketable title and the buyer’s right to recover the deposit.

## Decision

- The appellate court affirmed summary judgment for the buyer.
- The recorded conservation restriction held by the land trust was an encumbrance.
- Because the restriction was not listed among the contract’s permitted exceptions, the sellers could not tender the promised “good and clear record and marketable title.”
- The buyer was entitled to refuse title, rescind, and recover the $40,000 deposit.

## Legal Principles

- “Good and clear record title” is determined from the record alone and requires an indefeasible, unencumbered estate unless the contract expressly allows specified burdens.
- An encumbrance includes a third party’s right or interest that limits use or diminishes value, even if the fee can still pass.
- A recorded private conservation restriction is an encumbrance because it grants enforceable rights to a third party and restricts the owner’s use.
- Overlapping public-law regulation does not render a private recorded restriction legally insignificant; marketability turns on record burdens and the parties’ contractual allocation of acceptable encumbrances.

## Conclusion

A buyer who contracts for marketable record title may reject title and recover a deposit when the property is subject to an undisclosed recorded private conservation restriction, even if public environmental laws impose similar practical limits.


Coons v. Carstensen, 446 N.E.2d 114 (Mass. App. Ct. 1983)