A Lis Pendens is a type of written notice indicating that a lawsuit has been filed concerning a particular piece of real estate. Lis Pendens may be filed for lawsuits that involve “real estate claims,” such as a dispute over the title or enforcement of a lien. The notice informs a buyer or lender that there is an outstanding legal claim on the property that still needs to be resolved.
Such notices are typically filed in the county recorder’s office. In some jurisidictions a lis pendens also serves as constructive notice to other participants in the lawsuit. While lis pendens can be applied to both real and personal property, they are mostly used for real property such as a house or a parcel of land.
Lis pendens notices alert potential lenders or buyers that the title to the property has come into question, and that a lawsuit is pending on the property. For example, if a buyer conducts a county search at the recorder’s office, the records will also show that a lis pendens has been issued for the property. This tends to make the property less appealing to the buyer or a lender, since the lawsuit is basically a “cloud” or encumbrance on the title.
Note that a lis pendens doesn’t necessary prevent the sale or transfer of the property; it also generally won’t prevent lenders from issuing a loan on the property. A lis pendens basically states, “this property has some extra legal baggage that needs to be resolved.” Thus, the presence of a lis pendens in the property records does tend to discourage legitimate buyers and reputable lenders from following up on the property.
Yes- if an interested party believes that a lis pendens has been improperly filed, they can usually file a suit with the court in order to have the notice expunged (cleared from the title).
In many jurisdictions, a lis pendens can only be issued if the pending lawsuit involves a valid “real property claim.” A valid real property claim is one that affects the title to the property or one that affects the rights to possession in the property.
Thus, one common way to challenge a lis pendens is to prove that the pending lawsuit doesn’t actually involve a “real estate claim.” For example, if the pending lawsuit only has to do broken contract regarding gardening services, that type of dispute doesn’t really involve any ownership interests. And so, the lis pendens notice is likely to be removed from the record if challenged.
Another way to have a lis pendens removed is to prove that the party filing the pending lawsuit doesn’t really have a good chance of success in the lawsuit. If the party that filed the lis pendens clearly doesn’t have a chance at winning the suit, the lis pendens can usually be expunged. This is known as the “probably validity” requirement, and can be different depending on the jurisdiction.
Lis pendens notices are an important aspect of real property law. If you need to file a lis pendens, or if a lis pendens has been filed in connection with your own property, you’ll likely need the assistance of a real estate lawyer. An experienced real estate attorney in your area can go over your jurisdiction’s laws with you, and can represent you in court during the formal hearings.
Last Modified: 03-25-2018 11:21 PM PDTLaw Library Disclaimer
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