Black-letter propositions
- 01
Marketable title is reasonably free from litigation risk and is ordinarily due at closing.
- 02
Adverse-possession gaps, undisclosed encumbrances, and existing zoning violations can create defects; many liens can be cured from proceeds.
- 03
Equitable conversion can shift beneficial ownership and traditional casualty risk, but statutes often keep risk with the seller until title or possession transfers.
- 04
Modern sellers may need to disclose known latent material defects not readily observable.
- 05
Breach can support specific performance, expectation, reliance, restitution, or agreed-deposit treatment.
Use this attack sequence under time
Frame the issue
Identify closing date and time clause.
Resolve the next checkpoint
List title defects and cure options.
Resolve the next checkpoint
Choose casualty-risk rule.
Resolve the next checkpoint
Analyze disclosure and merger.
Finish the conclusion
State both parties' remedies.
Common wrong turns
- Marketable title is usually required at closing, not contract signing.
- Equitable conversion does not override a controlling statute or agreement.
- Merger at deed delivery has exceptions for collateral promises and fraud.
Worked example
A house burns before closing while the seller remains in possession in a Uniform Vendor and Purchaser Risk Act state.
Risk stays with the seller because the buyer has neither title nor possession. The buyer may avoid or adjust the contract under the statute.
Practice this topic
Marketable title
Cornell defines marketable title as title free from claims or disputes about ownership or from any threat of litigation. When a seller sells property there is an implied promise that the seller will deliver marketable title, which is also called good, merchantable or clear title. Encumbrances such as mortgages, adverse possession claims and zoning violations can make title unmarketable.
To guard against title problems many buyers purchase title insurance, and the seller's implied promise operates unless the contract provides otherwise.
Contract formalities
A contract to sell land must satisfy the statute of frauds, which Cornell describes as requiring certain contracts to be in writing and signed by the party bound, with land sales among the most common examples. The contract, the deed and the title report are separate documents, so separate the promise to deliver marketable title from the later delivery of the deed.
On casualty loss and disclosure, state the rule your course gives, since the sources cited here address title and writing requirements, not risk of loss.
Cornell describes marketable title as free from any claims or disputes about ownership or any threat of litigation, and says buyers who fear title problems often buy title insurance. In an exam answer, separate the buyer's right to refuse to close over an unmarketable title from any duty of the seller to disclose, which the sources cited here do not address.
Frequently asked questions
What is the controlling rule for marketable title, equitable conversion, casualty, and disclosure?+
Land-sale analysis covers marketable title at closing, cure, casualty allocation, disclosure, equitable conversion, and transaction remedies.
How should I analyze marketable title, equitable conversion, casualty, and disclosure on the bar exam?+
Identify closing date and time clause. List title defects and cure options. Choose casualty-risk rule. Analyze disclosure and merger. State both parties' remedies.
What is marketable title?+
Title free from claims or disputes about ownership or from any threat of litigation, according to Cornell.
What is implied in a sale of land about title?+
An implied promise that the seller will deliver marketable title to the buyer, according to Cornell's summary of marketable title.
What can make title unmarketable?+
Encumbrances such as mortgages, adverse possession claims and violations of zoning laws, which create a threat of litigation, per Cornell's summary.
What other names does marketable title have?+
Good title, merchantable title or clear title, all of which describe title free from claims or disputes about ownership.
Which statute requires land contracts to be in writing?+
The statute of frauds, which requires certain contracts, including land sales, to be in writing and signed by the party bound.