Axvig v. Czajkowski (2025 ND 135): Contractual Notice Provisions Are Mandatory Preconditions to Any Seller-Initiated Cancellation – Even When Proceeding by Court Action

Introduction

Court: Supreme Court of North Dakota  |  Date: 17 July 2025

This appeal arose from a quiet-title / cancellation action brought by Randy and Susan Axvig (successor sellers) against Dorothy Czajkowski (buyer) under a 2016 contract for deed covering farmland in Golden Valley County. The buyer conceded she had defaulted on payments and taxes, but argued the Axvigs could not leapfrog the contract’s two-step notice-and-cure process before suing. The district court deemed the contract’s detailed notice language “ineffectual” and granted summary judgment to the sellers. In a 4-1 decision, Justice Tufte reversed, holding that:

• Where a contract for deed expressly conditions any seller remedy of “cancellation in accordance with the laws of North Dakota” upon two successive 30-day notices and a 60-day cure opportunity, those notices are a contractual condition precedent to both statutory cancellation and cancellation “by court action.”
• Sellers who sue without first complying themselves breach the contract, rendering summary judgment improper.

The decision clarifies the interplay between Chapter 32-18, equitable cancellation actions, and parties’ private notice agreements, setting a new precedent on the obligatory nature of such provisions.

Summary of the Judgment

Applying de novo review to summary judgment, the Supreme Court:

1. Agreed the contract language was unambiguous, but rejected the district court’s reading that the sellers could bypass the notice clauses.
2. Differentiated between a remedy (cancellation) and the method (statutory notice vs. court action) for achieving it. The contract made notice a prerequisite to the remedy itself, irrespective of method.
3. Held that the Axvigs’ failure to serve the two notices constituted a breach; therefore the award of title to them was erroneous.
4. Reversed the amended judgment; remand issues were left implicit (the opinion ends with reversal only).

District Judge Brady’s dissent concluded the notice clauses created an unlawful “third” remedy (contractual cancellation) and were therefore void; hence the sellers’ court action was proper.

Analysis

A. Precedents Cited and Their Influence

• Bendish v. Castillo, 2012 ND 30 – Distinguished the two lawful methods of cancelling a contract for deed (statutory notice vs. court action). Axvig uses Bendish to show that “method” is separate from contractually imposed conditions precedent.
• Straub v. Lessman, 403 N.W.2d 5 (N.D. 1987) & Bender v. Liebelt, 303 N.W.2d 316 (N.D. 1981) – Established that cancellation by action is equitable and redemption periods are discretionary. Here they underline that court action is an available method—but only after contractual conditions are met.
• Johnson v. Gray, 265 N.W.2d 861 (N.D. 1978) & Langenes v. Bullinger, 328 N.W.2d 241 (N.D. 1982) – Discuss acceleration and dual remedies; cited in dissent to argue the contract’s acceleration clause was unlawful. Majority finds these cases irrelevant to the validity of the notice requirement.
• Higgins v. Lund, 2025 ND 47, and Am. Fed. Bank v. Grommesh, 2021 ND 228 – Provide rules for ambiguity and contract interpretation; applied to hold the language plain.
• Berger v. Sellers, 2023 ND 171 – Standard of summary judgment; sets the framework for reversal.

B. The Court’s Legal Reasoning

1. Unambiguous Text. The Court parses Section 15 of the contract, concluding it contains no contradictions:
   – ¶1: defines notice / cure sequence.
   – ¶2: defines consequences of cancellation (forfeiture of payments).
   – ¶3: preserves all other remedies (e.g. specific performance).
   Because the seller “may … cancel … in accordance with the laws of the State of North Dakota” only after the buyer fails to cure within the second 30-day period, notice is a true condition precedent.
2. Remedy vs. Method Distinction. Cancellation is the remedy; statutory notice and court action are merely procedural vehicles. The contract overlays an added precondition (60-day cure) on any vehicle. Ignoring that would convert “may” into an unfettered right, stripping buyer protections the parties bargained for.
3. Statutory Framework Harmonized. Chapter 32-18 expressly says its own notice can be skipped when proceeding by court action (§ 32-18-04(2)). But nothing in the statute nullifies contractual notice clauses. Section 9-07-03 NDCC lets parties lawfully define additional duties, and § 32-18-04’s “shall not be deemed necessary” language applies only to statutory notice, not contractual notice.
4. Equitable Principles & Anti-Forfeiture Policy. North Dakota favors opportunities to cure and disfavors forfeiture. Enforcing the notice clause honors that policy and the parties’ own risk allocation.
5. Application to the Record. It was undisputed the Axvigs never sent either contractual notice. Therefore they were not entitled to judgment as a matter of law, and their own breach precluded the equitable relief they sought.

C. Impact of the Decision

• Contract Drafting. Real-estate practitioners must recognize that any notice-and-cure language they insert will be strictly enforced, regardless of the chosen cancellation route. Boilerplate “time-is-of-the-essence” clauses will not override explicit cure periods.
• Litigation Strategy. Sellers can no longer assume they may skip contractual notices simply because they choose the “court action” path. Failure to comply will expose them to counterclaims for breach and defeat dispositive motions.
• Buyer Protections Enhanced. The ruling supplements statutory safeguards with contractual ones, effectively extending or adding cure windows where parties bargain for them.
• Judicial Economy. Expect an uptick in pre-suit notices and settlements; courts may see fewer premature cancellation suits.
• Precedential Weight. As a Supreme Court holding interpreting standard contract language, this case will likely be cited whenever North Dakota courts must decide whether private notice requirements survive election of statutory or equitable remedies.

D. Complex Concepts Simplified

• Contract for Deed. A seller finances the purchase; buyer gets equitable title but no deed until payment in full.
• Cancellation vs. Forfeiture. Both end the contract and strip the buyer’s interest, returning property to the seller. “Cancellation” is the term used in statutes, “forfeiture” often appears in contracts; Axvig treats them synonymously.
• Statutory Cancellation (N.D.C.C. ch. 32-18). Seller serves a strictly prescribed notice; buyer has 6–12 months to cure. No court case required.
• Cancellation by Court Action. Seller sues in equity. No statutory notice or statutory cure period, but the court may craft a redemption period.
• Condition Precedent. A contractual event that must occur before a party’s duty arises—in Axvig, the two notices are conditions precedent to a seller’s right to cancel.
• Remedy vs. Method. Remedy = substantive relief sought (cancellation). Method = procedural vehicle to accomplish it (notice or lawsuit).
• Summary Judgment. Judgment without trial, appropriate only when no genuine fact issues exist; reversed here because fulfillment of preconditions was in dispute.

Conclusion

Axvig v. Czajkowski elevates contractual autonomy in North Dakota real-estate deals: when parties negotiate extra notice-and-cure protections in a contract for deed, those protections bind the seller even if the seller chooses the expedient path of a court-initiated cancellation. The decision harmonizes Chapter 32-18 with freedom-of-contract principles, underscores the distinction between remedies and procedural methods, and strengthens anti-forfeiture policy. Practitioners should review existing contracts for deed, ensuring compliance with any layered notice obligations before commencing litigation, lest they find their own suits reversed on appeal—just as happened here.