Lohmeyer v. Bower
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| Lohmeyer v. Bower | |
| Court | Kansas Supreme Court |
|---|---|
| Citation | 227 P.2d 102 |
| Date decided | January 27, 1951 |
Facts
- Dr. Lohmeyer = homebuyer in 1951 in Kansas
- Bower = home seller
- Bower agreed to provide a marketable title with a warranty deed
- The house being sold had 2 problems
- being too close to the neighboring house in violation of a city ordinance
- being 1 story high which violated the sub-division restriction requiring houses to be 2 stories tall
- Lohmeyer's attorney advised him that he could face litigations in the future
- Bower was willing to buy a strip of land & convey it to Lohmeyer to resolve the encroachment issue in violation of the city ordinance
- Lohmyer sought to rescind the contract & demanded his earnest money back
- Bower & his escrow agent refused to return the deposit
Procedural History
- Lohmeyer sued Bower in Lyon County district court in Kansas.
- Bower counter-sued seeking Lohmeyer to complete the sale.
- Lohmeyer lost in the trial court.
Issues
- Do zoning & sub-division restriction violations render a title un-marketable?
- May a buyer rescind a sale if the seller can't provide merchantable title?
Holding
- Yes. A violation of a land-use restriction constitutes an encumbrance rendering the title to the land un-marketable.
- Yes. The buyer has the right to cancel the sale if the seller can't provide a marketable title.
Judgment
Reversed
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