Mertens v. Berendsen

In Mertens v. Berendsen (1931) 213 Cal. 111, 113 1 P.2d 440, a purchaser of real property sought to rescind a real estate sales contract after discovering a building on the property encroached onto an adjoining city street. "The question presented by these facts is, of course, whether the encroachment renders the title of the vendor defective." ( Mertens, supra, 213 Cal. at p. 113.) Title generally need only be marketable; i.e., free from reasonable doubt. (Ibid.) "We think that if it should appear that the city has a right of action based upon the encroachment and that the enforcement of that right would cause substantial loss to the owner, the title cannot be said to be free from reasonable doubt. A purchaser should not be compelled to rely upon past acquiescence or mere indifference on the part of city officials to substantial interference with the property rights of the people." ( Id. at pp. 114-115.) Ultimately, the Supreme Court found in Mertens, as a matter of law, that the encroachment was so insignificant (two-eighths to seven-eighths of an inch) that it would not affect the marketability of title. ( Mertens, supra, 213 Cal. at pp. 115-116.) And even if the city took action, it would have no right to have the encroachment removed and the owner could not be required to pay more than nominal damages. (Ibid.)