Haisfield v. Lape

570 S.E.2d 794 (2002)

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Nature of the Case

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Facts

D entered into a land sale contract with for the sale of 99 acres in Albemarle County. This land was once part of a larger piece of land of 148 acres owned by P. P conveyed approximately 48 acres to the 'Moseses.' D deposited $50,000 earnest money to be held in escrow. The agreement also provided that if D defaulted, the $50,000.00 could be kept by P as liquidated damages in lieu of all other remedies provided at law or in equity. D notified P that the chain of title contained a restrictive covenant that rendered title to the property unmarketable. A line-of-sight easement was discovered by D just prior to closing. It was found in the 1994 deed conveying the land to the Moseses from P. It held that until 2024 no building shall be built on property which may be visible from the main residence located on the property conveyed by this deed. D gave P 60 days to cure the defect created by the Moseses' line-of-sight easement. D asked for the $50,000 earnest money deposit if the defect was not cured. P disagreed that the line-of-sight easement rendered title unmarketable, and efforts between the parties to reach a settlement in the matter were unsuccessful. P sued D claiming the $50,000 earnest money deposit plus interest as liquidated damages for the breach. P filed a grounds of defense and counterclaims for failure to deliver marketable title, and asking the court to return to her the $50,000 earnest money deposit. The trial court held that the line-of-sight easement did not materially or adversely affect the use of the property for residential purposes nor did it render title unmarketable under the terms of the Purchase Agreement. P got the judgment, but the court refused to award attorney fees. Both P and D appealed.