33-438. Sale of property subject to certain
liens and encumbrances
A. As used in this section, "lien or encumbrance" does not include taxes or
assessments, reservations in patents, easements, rights-of-way, reservation of mineral
rights, covenants, conditions or restrictions.
B. The sale of any lot or parcel of property which is subject to a lien or
encumbrance or when the interest of the seller is held under option or contract of
purchase or in trust, shall be voidable by the buyer, unless there is a provision in the
instrument evidencing the lien, encumbrance, option, contract or trust agreement, or in a
valid supplementary agreement, assuring that the buyer will receive title free of the
lien, encumbrance, option, contract or trust agreement, upon completion of all payments
and performances of all the terms and provisions required to be made or performed by the
buyer.
C. The buyer's right to void such sale may not be exercised if he has in fact
received title, free of such lien, encumbrance, option, contract or trust. Any action to
void such sale shall be commenced either within two years after discovery or after
completion of all payments and performance of all terms and provisions required to be
made or performed by the buyer, whichever occurs first, and not thereafter.
D. The buyer's right to void such sale shall be in addition to and shall not affect
any other legal or equitable remedy.
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