Defendant's brother DiLoreto, the predecessor in title, subdivided a parcel of land to build two houses. As part of this, he built a bulkhead next to an edge bordering a wetlands and filled that portion. He then built a house and quitclaim deeded it to brother, defendant. Defendant warranty deeded it to plaintiff, free and clear of all encumbrances, but subject to all building and zoning restrictions and restrictions of record.
Plaintiff engaged an engineering firm to repair the bulkhead and discovered that it was encroaching on the wetlands boundary, violating a statute. The state department of environmental protection suggested that plaintiff submit an application them demonstrating the necessity of maintaining the bulkhead, but plaintiff instead filed a lawsuit against defendant, claiming breach of the warranty against encumbrances.
Trial court determined that the area had been filled without the necessary permits, that defendant had breached the warranty against encumbrances, and that defendant innocently misrepresented the condition of the property by allowing plaintiff to purchase the property in reliance on defendant's warranty against encumbrances. The court awarded plaintiff $47,792.60 in damages and costs.