Remedies for unmarketable title: Before closing, which options may a buyer have for unmarketable title?

• A. Rescind and recover costs; sue for breach; or specific performance with abatement, but not until closing
• B. Only sue for damages immediately
• C. Only specific performance before closing
• D. The contract is automatically void if title is unmarketable

Answer: (A)

When title is unmarketable, the buyer has several pre-closing remedies that recognize the breach of the seller’s obligation to convey marketable title. The buyer can choose to rescind the contract and recover costs spent in reliance or investigation, sue for damages for breach, or seek specific performance with an abatement of the purchase price (and typically with performance deferred until closing). The key point is that specific performance can be pursued to force conveyance, but the actual transfer occurs at closing, not before.

Rescission lets the buyer end the deal and recover costs, while a damages claim seeks compensation for the breach. Specific performance with abatement addresses the defect by forcing the seller to convey while reducing the price to reflect the unmarketable title. The other options are too narrow or incorrect: damages alone ignores the other available remedies, and asserting only specific performance before closing ignores the ability to rescind or seek damages. An automatic voiding of the contract on unmarketable title isn’t accurate either.