Also known as: marketability · marketable title
Written by attorneys — see sources below.
Title to real property that is free from reasonable doubt and that a reasonably prudent purchaser with full knowledge of the facts would accept. The seller in a land sale contract must deliver such title at closing unless the parties agree otherwise. Defects such as unreleased liens, breaks in the chain of title, or outstanding adverse claims render title unmarketable and permit the buyer to refuse performance or seek rescission.
Malcolm McKinley contracted to sell a factory to Maya Malik for $4.8 million and promised marketable title at closing. A title search revealed a recorded option allowing a former tenant to repurchase part of the land. Maya refused to close because the option created reasonable doubt that a prudent purchaser would not accept, so she rescinded and recovered her deposit.
Miguel Mendoza agreed to buy commercial land from Miles Montgomery. The title search showed an unreleased supplier lien on fixtures and improvements. Miles could not obtain a release before closing, so Miguel refused performance and sued for return of his deposit on grounds that the lien rendered title unmarketable.
Matthew Martinez contracted to purchase a hilltop parcel from Meredith Maxwell and required marketable title. The title commitment listed an old easement as an exception but offered insurance at standard rates. Matthew rejected the tender because the easement created doubt a prudent buyer would not accept, even though the title was insurable.
Morgan Financial sold property to Mercury Industries. After the contract formed, a judgment lien attached to the seller's interest. Mercury refused to close because the lien constituted an outstanding encumbrance that prevented delivery of marketable title, and the contract provided no cure period for that defect.
A farmer grew wheat for home consumption that remained in marketable condition and could enter the market if prices rose. The farmer argued the activity did not affect interstate commerce, but the Court treated the wheat as competing with wheat already in commerce because its presence in marketable condition influenced market prices.
Filburn owns and operates a small farm in Montgomery County, Ohio, where he maintains a herd of dairy cattle, sells milk, raises poultry, and sells poultry and eggs. For many years he has also raised a small acreage of winter wheat sown in the fall and harvested the following July, selling a portion of the crop, feeding part to poultry and livestock on the farm, using some to make flour for home consumption, and keeping the rest for the following seeding. In July 1940 the Secretary of Agriculture established for Filburn's 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels per acre. Filburn received notice of the allotment before planting his 1941 crop and again before harvest. He nevertheless sowed 23 acres and harvested 239 bushels from the 11.9 excess acres. The Agricultural Adjustment Act of 1938 as amended on May 26, 1941, treated the excess as farm marketing excess subject to a penalty of 49 cents per bushel, totaling $117.11. Filburn did not pay the penalty, store the excess wheat under the Secretary's regulations, or deliver it to the Secretary. The County Agricultural Conservation Committee therefore refused him a marketing card required to protect buyers from liability for the penalty and its lien. On May 19, 1941, the Secretary delivered a radio address to wheat farmers advocating approval of the quotas. A referendum of wheat growers was held on May 31, 1941, and 81 percent of those voting favored the marketing quota. Filburn filed a complaint in federal district court against the Secretary of Agriculture, members of the County Agricultural Conservation Committee for Montgomery County, Ohio, and a member of the State Agricultural Conservation Committee for Ohio, seeking to enjoin enforcement of the penalty against him and a declaratory judgment that the quota provisions were unconstitutional. The district court in Filburn v. Helke, 43 F. Supp. 1017, held that the Secretary's speech invalidated the referendum, that the May 26, 1941 amendment increasing the penalty and subjecting the entire crop to a lien was retroactive and violated the Fifth Amendment, and alternatively that the equities favored Filburn. The court permanently enjoined collection of any penalty exceeding 15 cents per bushel. The defendants appealed to the Supreme Court, which granted review.
View caseAn EPA rule allowed sources to trade marketable permits as part of a broader emission-reduction system. Industry challengers contended the statute did not authorize such trading mechanisms. The Court examined whether the statutory text supported treating emission allowances as marketable instruments within the approved regulatory approach.
In 2015, the Environmental Protection Agency promulgated the Clean Power Plan rule addressing carbon dioxide emissions from existing coal- and natural-gas-fired power plants under Section 111(d) of the Clean Air Act. The rule identified three building blocks as the best system of emission reduction, including generation shifting from coal-fired plants to natural gas plants and from both to renewable sources. EPA projected that the rule would reduce coal's share of national electricity generation from 38% in 2014 to 27% by 2030, impose billions in compliance costs, raise electricity prices, retire dozens of coal plants, and eliminate tens of thousands of jobs. The Supreme Court stayed the Clean Power Plan in 2016. After a change in presidential administrations, EPA in 2019 repealed the Clean Power Plan, concluding that generation shifting exceeded its statutory authority, and replaced it with the Affordable Clean Energy rule, which relied solely on heat rate improvements at individual plants. Dozens of parties, including twenty-seven States, and private parties challenged the repeal and the ACE rule in the D.C. Circuit. The Court of Appeals held that EPA's repeal rested on a mistaken reading of the Clean Air Act and vacated both the repeal and the ACE rule. Following another change in administrations, EPA moved to partially stay the D.C. Circuit's mandate as to the Clean Power Plan while considering new rulemaking. The court granted the stay. Westmoreland Mining Holdings LLC, The North American Coal Corporation, and several States then petitioned for certiorari, which the Supreme Court granted.
View caseUnreleased liens, breaks in the chain of title, recorded encumbrances such as options or easements, and outstanding adverse claims create reasonable doubt that prevents a prudent purchaser from accepting the title.
No. When the contract specifically demands marketable title, the willingness of a title insurer to cover an encumbrance at standard rates does not satisfy the seller's obligation because marketability focuses on freedom from reasonable doubt rather than the availability of insurance.
Many contracts grant the seller a stated cure period, such as thirty days, to remove defects before the buyer may rescind. If the defect cannot be cured within that window, the buyer may refuse to close and recover any deposit.
Marketable title requires freedom from reasonable doubt that a prudent purchaser would accept. Insurable title requires only that a reputable insurer will cover the title at standard rates, a standard that can be less demanding than full marketability.
…as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies…