Key Takeaways
- Lis pendens is a legal notice recorded in property records to inform the public of pending litigation involving a claim on real estate, potentially affecting the property’s title.
- While not a lien, a lis pendens serves as a warning to buyers and lenders, often hindering the sale or refinancing of the property until the lawsuit is resolved.
- The procedures for filing, contesting, and removing a lis pendens vary by state, making it crucial to understand local rules and consult legal professionals for specific situations.
Understanding Lis Pendens: Meaning and Purpose
What is Lis Pendens?
Lis pendens is a Latin phrase meaning “suit pending.” In the context of real estate law, it refers to a formal written notice that a lawsuit has been filed concerning a specific piece of property. This notice is recorded in the official county property records where the property is located. The central purpose of a lis pendens is to inform prospective buyers, lenders, and other interested parties that the property’s title may be affected by ongoing litigation. For a foundational definition, see Legal Information Institute’s explanation.
A lis pendens is not itself a legal claim to the property, nor does it create a lien. Rather, it serves as a public warning that the outcome of the lawsuit could impact ownership or other interests in the property.
The Legal Function of Lis Pendens
The doctrine of lis pendens is designed to preserve the rights of the party bringing the lawsuit. By recording a lis pendens, the plaintiff ensures that any subsequent purchaser or encumbrancer of the property is legally bound by the outcome of the litigation. This prevents the defendant from selling, transferring, or otherwise disposing of the property in a way that would defeat the plaintiff’s claim. As described in the Virtual Underwriter’s explanation, the lis pendens is a notice rather than a lien, which is an important distinction in real estate law.
When is a Lis Pendens Used?
A lis pendens is commonly filed at the outset of litigation that directly affects real property. Typical scenarios include:
- Foreclosure actions
- Partition suits (where co-owners seek to divide property)
- Quiet title actions (to resolve disputes over ownership)
- Divorce proceedings involving real estate
- Disputes over easements or boundaries
The filing of a lis pendens is often the first step in these types of lawsuits, as it immediately places the public on notice of the pending claim. For more context, see Practical Law’s overview.
How Lis Pendens Affects Real Estate Transactions
Impact on Buyers, Sellers, and Lenders
The presence of a lis pendens in the property records can have a significant impact on real estate transactions. For buyers, a lis pendens is a red flag that the property is involved in litigation, which could jeopardize their ownership if they proceed with the purchase. Most lenders will refuse to finance a property with a lis pendens, as the title is considered clouded until the dispute is resolved.
Sellers may find it nearly impossible to sell or refinance a property with a lis pendens attached. The uncertainty created by the pending lawsuit often reduces the property’s market value and deters potential buyers. Title companies will typically not issue title insurance on such properties, further complicating transactions. As explained by SmartAsset, the lis pendens effectively ties up the property until the underlying legal matter is settled.
Difference Between Lis Pendens and Liens
It’s important to distinguish between a lis pendens and a lien. A lien is a legal right or interest that a creditor has in a debtor’s property, typically as security for a debt or obligation. A lis pendens, by contrast, is merely a notice that litigation is ongoing and that the outcome may affect the property’s title. It does not, in itself, create a monetary claim against the property. This distinction is critical for understanding the legal implications of each and is further detailed by the Virtual Underwriter.
Legal Procedures: Filing, Contesting, and Removing a Lis Pendens
Filing a Lis Pendens
To file a lis pendens, the party initiating the lawsuit (usually the plaintiff) prepares a written notice describing the property and the nature of the legal action. The notice is then recorded with the county recorder or clerk’s office where the property is located. Recording the notice ensures that it appears in the property’s chain of title, making it discoverable in a title search.
The requirements for filing a lis pendens vary by jurisdiction, but generally include:
- A clear legal description of the property
- Identification of the parties involved
- A statement of the nature of the litigation
Consulting local statutes or a real estate attorney is essential, as improper filing can result in penalties or removal of the notice.
Contesting or Expunging a Lis Pendens
If the defendant believes that the lis pendens is improper or that the lawsuit does not genuinely affect the property’s title, they may file a motion to expunge (remove) the lis pendens. Courts will consider whether the underlying lawsuit truly involves a claim to the property and whether the lis pendens was filed in good faith. In some states, the defendant can seek damages if the lis pendens is found to be wrongful or malicious.
For details on removal procedures, see the “People Also Ask” section of most legal research platforms, or consult your local court rules.
Releasing or Removing a Lis Pendens
Once the lawsuit is resolved, the prevailing party (or often the party who filed the lis pendens) must file a “Release of Lis Pendens” or “Notice of Withdrawal” with the county recorder’s office. This officially clears the property’s title and allows for its sale or refinancing. If the lis pendens was expunged by court order, the order must also be recorded.
State-Specific Rules and Examples
Lis Pendens in Florida
In Florida, the doctrine of lis pendens is codified in state law. A lis pendens must be filed with the clerk of the court and recorded in the county where the property is located. Florida law requires a clear connection between the lawsuit and the property, and misuse of lis pendens can result in sanctions. For more information, see Harrison Estate Law’s overview.
Lis Pendens in Texas
Texas law treats lis pendens as a strategic legal tool to protect the interests of parties in real property litigation. The Texas Property Code outlines specific requirements for the contents and recording of a lis pendens, and courts have authority to expunge improper notices. For a detailed explanation, visit Wilson Legal Group’s blog.
Variations in Other States
Each state has its own statutes and case law governing lis pendens. Some states require a court order before recording, while others allow filing as a matter of right. The procedures for contesting and removing a lis pendens also vary, making it vital to consult local legal counsel or official sources.
Practical Considerations and Risks
Strategic Use and Potential Abuse
While a lis pendens is a powerful tool for protecting legal claims, it can also be misused. Filing a lis pendens without a legitimate basis can expose the filer to liability for slander of title or malicious prosecution. Courts are vigilant in ensuring that lis pendens are used only in cases where the litigation genuinely affects property rights.
Impact on Marketability and Value
A lis pendens can significantly reduce a property’s marketability and value. Buyers and lenders are generally unwilling to proceed with transactions involving a property subject to litigation. This can place significant pressure on the parties to resolve the dispute quickly.
Importance of Legal Advice
Given the complexity and potential consequences of filing or contesting a lis pendens, consulting an experienced real estate attorney is highly recommended. Legal professionals can provide guidance tailored to the specific facts and laws of your state.
Additional Resources
- Legal Information Institute: Lis Pendens
- Virtual Underwriter: Lis Pendens Explanation
- SmartAsset: What Is Lis Pendens?
- Investopedia: Lis Pendens
Conclusion
The doctrine of lis pendens is a critical aspect of real estate law, serving to protect the interests of parties involved in litigation concerning property. By providing public notice of pending lawsuits, lis pendens ensures that any subsequent transactions involving the property are subject to the outcome of the legal dispute. However, the use and removal of lis pendens are governed by complex rules that vary by state. Whether you are a property owner, buyer, or legal professional, understanding lis pendens is essential for navigating real estate transactions involving contested property.
For in-depth legal research, case law, and state-specific guidance, visit Counsel Stack.
Disclaimer: This guide provides a general overview of lis pendens for informational purposes only. Real estate laws and procedures vary by jurisdiction, and there are many nuances not covered here. For advice on your specific situation, consult a qualified attorney or legal professional.
