Frimberger v. Anzellott

25 Conn. App. 401, 594 A.2d 1029 (1991)

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Nature of the Case

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Facts

Anzellotti (D) received land from his brother, DiLoreto. DiLoreto had subdivided the land for residential use and gave a parcel to his brother, D. The property abuts a tidal marshland and was therefore subject to General Statutes controlling the development of wetlands. In 1978, DiLoreto built a bulkhead and filled that portion of the subject parcel adjacent to the marshland, then constructed a dwelling on that parcel. He transferred the property to D by a quitclaim deed in 1984. D then conveyed the property to Frimberger (P) by warranty deed, free and clear of encumbrances but subject to building and zoning restrictions, and easements or restrictions of record. When P decided to perform repairs on the bulkhead in 1986, P discovered that there was a wetlands violation on the property. In order to correct the problem, P was told to file an application demonstrating the necessity to maintain the bulkhead and fill within the tidal wetlands. Instead of filing that claim, P sued D for breach of warranty against encumbrances and innocent misrepresentation. The trial court determined that the area has been filled without obtaining the necessary permits. The court found that D had breached the warranty against encumbrances and has innocently misrepresented the condition of the property by allowing P to purchase the property in reliance on D’s warranty against encumbrances. P was awarded damages of $47,792.60, which included costs to fix the land and diminution of value of the property. D appealed.