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MAGUN v. BOMBACI
Factual and Procedural Background
The plaintiffs, Terry D. Magun et al., purchased real estate including a dwelling and improvements from the defendants, James V. Bombaci et al., by general warranty deed dated August 4, 1978. The deed conveyed the property "with the buildings and all other improvements thereon," free and clear of all encumbrances except those specifically mentioned in the deed. The plaintiffs later discovered that parts of the driveway and sewer lateral line were located on adjacent property not owned by the defendants. The defendants had purchased the property in 1973 and sold it in 1978, and neither party had definitive knowledge of this encroachment at the time of sale. The plaintiffs brought an action for damages alleging breach of the covenant against encumbrances based on the defendants' lack of ownership of these appurtenant features.
Legal Issues Presented
- Whether the presence of parts of a driveway and sewer lines on adjacent property constitutes an encumbrance against the fee conveyed under a general warranty deed.
- Whether such driveway and sewer lines qualify as appurtenances that pass with the land under the deed.
- Whether the defendants had the power to convey the portions of the driveway and sewer located on adjacent land.
Arguments of the Parties
Plaintiffs' Arguments
- The plaintiffs argued that the driveway and sewer lines, although partially located on adjacent property, were appurtenances reasonably necessary for the enjoyment of the land purchased.
- They claimed that the defendants’ lack of ownership of these parts constituted an encumbrance, breaching the covenant against encumbrances in the deed.
Defendants' Arguments
- The defendants maintained they had no power to convey parts of the driveway and sewer line located on another’s property.
- They argued that the location of these improvements on adjacent land did not constitute an encumbrance against the fee conveyed.
- They also pointed out that neither party had definitive knowledge of the encroachment at the time of sale.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Aczas v. Stuart Heights, Inc., 154 Conn. 54, 221 A.2d 589 (1966) | Definition of encumbrance as a right or interest in land that diminishes value but is consistent with passing the fee. | Used to establish that an encumbrance must be a lawful claim enforceable against the grantee and that the driveway and sewer encroachment did not constitute such an encumbrance. |
| Staite v. Smith, 95 Conn. 470, 111 A. 799 (1920) | Requirement that an encumbrance must be a lawful claim enforceable against the grantee. | Supported the conclusion that the encroachment did not constitute a lawful encumbrance. |
| Gager v. Carlson, 146 Conn. 288, 150 A.2d 302 (1959) | Two-prong test for appurtenances: grantor must have power to convey and the interest must be reasonably necessary to the enjoyment of the property. | Applied to determine that although the encroachment was reasonably necessary, the defendants lacked power to convey the portions on adjacent land. |
| Whittelsey v. Porter, 82 Conn. 95, 72 A. 593 (1909) | Clarification of appurtenances passing with land and limits on conveyance of adjoining property. | Used to support the court’s reasoning that the defendants could not convey property they did not own. |
| Jones v. Carlson, 17 Conn. Sup. 109 (1950) | Cases where encroachment of a building on adjacent land was held to constitute a breach of covenant against encumbrances. | Noted as contrasting authority but distinguished from the present case. |
| Gamorsil Realty Corporation v. Graef, 128 Misc. 596, 220 N.Y.S. 221 (1926) | Similar holding regarding encroachment constituting breach of covenant. | Referenced as an example of differing jurisdictional views. |
| Fehlhaber v. Fehlhaber, 80 Misc. 149, 140 N.Y.S. 973 (1913) | Support for the proposition that encroachments may breach covenants. | Noted but distinguished from Connecticut precedent. |
| Burke v. Nichols, 1 Abb. App. 260 (N.Y. 1866) | Holding that land does not pass as an appurtenant to land and that no claim exists for failure of title to encroaching portions. | Considered more consistent with Connecticut precedent and cited as controlling authority. |
Court's Reasoning and Analysis
The court began by defining an encumbrance as a lawful claim or interest in land that diminishes its value but is consistent with passing the fee. The court found that the driveway and sewer lines partially located on adjacent property did not constitute an encumbrance against the fee conveyed. It emphasized the habendum clause granting the property "with the appurtenances thereof" and explained that for an interest to pass as an appurtenance, the grantor must have the power to convey it and it must be reasonably necessary to the enjoyment of the property.
While the evidence satisfied the necessity prong, the defendants clearly lacked power to convey the portions of the driveway and sewer line on the neighboring property. The court rejected any claims of fraud or misrepresentation, noting no evidence supported such theories. It acknowledged contrary case law from other jurisdictions holding that encroachments breach covenants but concluded that Connecticut precedent, particularly Whittelsey and Burke v. Nichols, align with the view that no breach occurs when the encroachment is on land not conveyed.
The court further observed that this situation likely arose from mutual misunderstanding of the property's actual condition and underscored the prudence of purchasers obtaining surveys to verify improvement locations.
Holding and Implications
The court rendered judgment for the defendant, holding that the defendants did not breach the covenant against encumbrances because they had no power to convey the portions of the driveway and sewer line located on adjacent property and such encroachments do not constitute encumbrances under Connecticut law.
The direct effect is that the plaintiffs' claim for damages based on breach of covenant against encumbrances was denied. The decision does not establish new precedent but reaffirms existing Connecticut principles limiting conveyance to interests the grantor owns and clarifying the nature of appurtenances and encumbrances.
For an interest to pass appurtenant to land, the grantor must have the power to convey the interest and the interest must be reasonably necessary to the enjoyment of the property conveyed. The plaintiffs, who had purchased certain property "with the appurtenances thereof" from the defendants, sought damages for breach of the covenant against encumbrances on the ground that parts of the driveway and of the sewer lines encroached on an adjacent property. They claimed that the defendants' lack of ownership of those alleged appurtenances constituted an encumbrance on the property conveyed. Because the defendants had no power to convey those parts of the driveway and of the sewer line located on the adjacent property, judgment was rendered for the defendants.
HIGGINS, J.
The plaintiffs purchased the subject real estate, with dwelling house and improvements located thereon, by general warranty deed from the defendants on August 4, 1978. Among other provisions, the deed provided ". . . with the buildings and all other improvements thereon. . . ." (Emphasis added.) The premises were conveyed free and clear of all encumbrances, except as mentioned in the deed. The deed contained no reference to the location of the driveway and/or sewer lines, or any other improvement.
From the evidence, it is established that part of the driveway and portions of the sewer lateral line were, in fact, located on property adjacent to the subject premises. This is the condition that existed when the defendants purchased the property in 1973 from the Stone Construction Company and when they sold the property to the plaintiffs in 1978. The evidence does not establish that the defendants had any definitive information concerning the driveway and sewer line problems until after they sold the property to the plaintiffs.
The plaintiffs base their claim for damages on the theory in law that this factual situation raises a breach of the covenant against encumbrances.
An encumbrance includes every right to or interest in land which may subsist in third persons to the diminution of the value of the land, but consistent with the passing of the fee. Aczas v. Stuart Heights, Inc., 154 Conn. 54, 60, 221 A.2d 589 (1966). It must be a lawful claim or demand enforceable against the grantee. Staite v. Smith, 95 Conn. 470, 472, 111 A. 799 (1920). The location of the driveway and sewer lines partially on the property belonging to another does not constitute an encumbrance against the fee herein conveyed.
The habendum clause in the deed granted to the plaintiffs "the above . . . bargained premises with the appurtenances thereof. . . ." The plaintiff claims that sewer and driveway that encroach or are located on another's property are so related to the reasonable use of the bargained for property that they constitute appurtenances thereof. In effect, the plaintiffs claim that the defendants' lack of ownership of a portion of these alleged appurtenances constitutes an encumbrance on the property conveyed.
For something to pass appurtenant to land, two conditions must be satisfied: it must be something (1) which the grantor has the power to convey; and (2) which is reasonably necessary to the enjoyment of the thing granted. Gager v. Carlson, 146 Conn. 288, 292-93, 150 A.2d 302 (1959); Whittelsey v. Porter, 82 Conn. 95, 101, 72 A. 593 (1909). Although the evidence would satisfy the second prong of this test, the defendants in no way had any power to convey that part of the driveway and sewer line located on property of another.
It is evident that this situation has resulted from misapprehension of the parties as to what the actual factual situation was. The complaint in no sense raises any question of fraud or misrepresentation, nor, indeed, does the evidence tend to sustain any such theory of recovery.
The court recognizes that there are cases that appear to hold that the encroachment of a building on the purchaser's land upon adjacent property does constitute a violation of the covenant against encumbrances. Jones v. Carlson, 17 Conn. Sup. 109 (1950); Gamorsil Realty Corporation v. Graef, 128 Misc. 596, 597, 220 N.Y.S. 221 (1926); Fehlhaber v. Fehlhaber, 80 Misc. 149, 150, 140 N.Y.S. 973 (1913). It appears, however, that the result in Burke v. Nichols, 1 Abb. App. 260 (N.Y. 1866), is more nearly in conformity with Connecticut precedent as spelled out in Whittelsey. In that case, the house on the conveyed property encroached on adjoining land. The purchaser claimed that this encroachment constituted a breach of the covenants of the deed. That court disagreed and held that the rule was that land does not pass as an appurtenant to land. Since the adjoining land was not conveyed or described by the deed, the plaintiff had no claim against the defendant by reason of the failure of title to that portion of the house and fence that stood thereon. The court noted that no action could have been maintained for the breach of any of the covenants of the deed.
This court opines that this may be the core reason why many wise purchasers require a survey to establish the location of the improvements on land sought for purchase.
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