--- title: "Lohmeyer v. Bower" type: Landmark Case source: https://casebriefly.com/landmark-cases/lohmeyer-v-bower --- # Lohmeyer v. Bower Lohmeyer v. Bower established that a buyer may rescind a real estate contract when the seller cannot deliver marketable title due to existing zoning or restrictive covenant violations on the property. The case clarified that marketable title requires not only a clear chain of title but also freedom from encumbrances that render the property unusable or expose the buyer to litigation. ## Citation 170 Kan. 442, 227 P.2d 102 (1951) ## Year 1951 ## Court Supreme Court of Kansas ## Facts Lohmeyer contracted to purchase a lot with a house from Bower. The contract required Bower to convey a good, merchantable title. The house violated both a city zoning ordinance (which required a two-story dwelling) and a restrictive covenant in the plat (which required a two-story dwelling on the lot). Lohmeyer discovered these violations and sought rescission of the contract, arguing that the violations rendered the title unmarketable. ## Procedural History The trial court found for Bower, holding that the violations did not affect marketability of title. The Kansas Supreme Court reversed. ## Issue Whether existing violations of zoning ordinances and restrictive covenants on property render the seller's title unmarketable, entitling the buyer to rescission of the purchase contract. ## Holding The court held that existing violations of zoning ordinances and restrictive covenants constitute encumbrances that render title unmarketable. A buyer who contracts for merchantable title is entitled to property that is not in violation of law or subject to restrictions that could expose the buyer to litigation or governmental enforcement action. Lohmeyer was entitled to rescind the contract. ## Reasoning The court reasoned that marketable title means title that is free from reasonable doubt and would not expose the buyer to litigation or enforcement action. The existing zoning violation meant the buyer could face governmental action requiring conformity, demolition, or fines. The restrictive covenant violation meant the buyer could face injunctive relief from neighboring property owners. These risks rendered the title unmarketable regardless of whether enforcement was likely. The court distinguished between the existence of a zoning ordinance (which does not impair marketability) and an existing violation of a zoning ordinance (which does). ## Impact Lohmeyer v. Bower clarified the concept of marketable title and is widely cited for the principle that existing code violations and covenant breaches constitute title defects. The case influenced the standard practice of conducting code compliance inspections before closing and including representations about zoning compliance in purchase agreements. Title insurance companies routinely consider code violations in assessing title marketability. ## Key Quotes - A purchaser ought not be compelled to take property which he cannot enjoy without restriction or use without the risk of litigation. - The distinction is between the existence of a restrictive ordinance and an existing violation of the terms of a restrictive ordinance. - The title to the lot in question is not a good and merchantable title and that the plaintiff is entitled to rescission. ## Related Cases - johnson-v-davis - stambovsky-v-ackley - bean-v-walker - murphy-v-financial-development-corp ## Exam Relevance Lohmeyer is frequently tested on exams in questions about marketable title, the duty to deliver good title, and the distinction between encumbrances that affect marketability and those that do not. Students should be prepared to analyze whether a particular defect renders title unmarketable and what remedies are available to the buyer. ## Study Tips - Know the distinction between existing violations (marketability defect) and mere existence of regulations (not a defect). - Understand that marketable title means title free from reasonable doubt, not perfect title. - Be prepared to identify different types of encumbrances: zoning violations, covenant breaches, liens, easements, and encroachments. - Connect this case to the standard real estate contract provision requiring delivery of marketable title. ## Doctrine Established Existing Violations as Title Defects Affecting Marketability --- Source: [Lohmeyer v. Bower — CaseBriefly](https://casebriefly.com/landmark-cases/lohmeyer-v-bower)