## Facts

- A residential parcel in Old Saybrook, Connecticut abutted tidal wetlands and was subject to the state Tidal Wetlands Act.
- In 1978, the seller’s predecessor in title subdivided the land, built a bulkhead, and placed fill near the wetlands, then built a dwelling.
- The bulkhead and fill work was performed without required tidal wetlands permits.
- The predecessor conveyed the property to the seller in 1984; the seller conveyed it to the buyer by warranty deed in 1985.
- The deed warranted the property was “free and clear of all encumbrances,” subject only to specified recorded restrictions and easements.
- After closing, the buyer planned repairs, consulted engineers, and state environmental officials identified a tidal wetlands violation and possible encroachment.
- The violation was created by the predecessor in title and was unknown to the seller at the time of sale.
- No administrative enforcement action had been initiated to compel correction by the time of trial.
- The environmental agency indicated the condition might be addressed through an application allowing the bulkhead and fill to remain, but the buyer did not pursue that process and sued the seller.

## Issues

1. Whether an unrecorded, unknown, and unenforced latent violation of land-use/environmental regulations constitutes an “encumbrance” breaching a warranty deed covenant against encumbrances.
2. Whether conveying the property by warranty deed, without disclosing the seller’s unknown wetlands violations, constitutes innocent misrepresentation.

## Decision

- The Appellate Court of Connecticut reversed the judgment for the buyer.
- The court held the latent wetlands violation was not an encumbrance under the covenant against encumbrances because it was unrecorded, unknown to the seller, and not the subject of enforcement action at conveyance.
- The court held the buyer failed to prove innocent misrepresentation because the seller made no actionable false statement and the deed covenant was not breached.
- The case was disposed of by reversing the trial court’s award of damages.

## Legal Principles

- A covenant against encumbrances is breached only by an existing encumbrance at the time of conveyance, typically a third-party right or interest in land consistent with transfer of the fee (e.g., liens, easements).
- Latent violations of land-use or environmental regulations that are unrecorded, unknown to the seller, and not subject to enforcement action at conveyance do not constitute encumbrances for purposes of a general warranty deed.
- A regulatory compliance problem that has not resulted in a recordable interest (such as an order or lien) is distinct from a title encumbrance.
- Claims of innocent misrepresentation require proof of a false representation of fact; a standard deed covenant does not supply that element when no encumbrance exists and the seller made no separate factual assertion.

## Conclusion

The court treated unrecorded and unenforced wetlands violations as regulatory matters rather than title defects, holding they neither breach a general warranty against encumbrances nor support innocent misrepresentation absent an affirmative false statement or an enforcement action creating a recordable interest.


Frimberger v. Anzellotti, 25 Conn. App. 401, 594 A.2d 1029 (Conn. App. Ct. 1991)