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What Is a Real Estate Lis Pendens? Your Expert Guide

A lis pendens, Latin for “suit pending,” is a formal written notice filed in the public records asserting a claim or legal action involving a particular piece of real property. Think of it as a big, bright warning sign that a lawsuit is underway that could affect the ownership or use of the property. It’s not a lien, but it can certainly act like one, clouding the title and potentially hindering any sale, refinance, or other transaction involving the property until the legal dispute is resolved.

Understanding the Nuances of Lis Pendens

The power of a lis pendens lies in its ability to give constructive notice to the world. This means that anyone dealing with the property – potential buyers, lenders, title companies – is presumed to know about the pending litigation, even if they haven’t actually read the notice. This “knowledge” then binds them to the outcome of the lawsuit. If the claimant wins the suit, the new owner or lender who ignored the lis pendens could find their rights subordinate to the claimant’s.

Purpose and Impact

The primary purpose of a lis pendens is to protect the plaintiff’s interest in the property during litigation. Imagine someone trying to sell a house that’s the subject of a lawsuit claiming they don’t actually own it! Without a lis pendens, they could potentially sell it to an unsuspecting buyer, making it much harder for the plaintiff to recover their rightful claim.

The impact of a lis pendens on the property can be significant. It:

Clouds the title: Makes the title less clear and marketable.
Hinders sale: Discourages potential buyers who don’t want to get involved in a lawsuit.
Impedes financing: Makes it difficult to obtain a mortgage or refinance, as lenders are wary of the potential claim.
Reduces property value: The uncertainty surrounding the title often leads to a decrease in the property’s market value.

The Legal Framework

The rules governing lis pendens vary from state to state, so it’s crucial to understand the specific laws of the jurisdiction where the property is located. Generally, a lis pendens must be filed with the county recorder’s office or similar government agency responsible for maintaining real property records. The notice typically includes:

The names of the parties involved in the lawsuit.
A description of the property subject to the litigation (usually the legal description).
The court and case number of the lawsuit.
A statement that the lawsuit affects the property.

Once filed, the lis pendens becomes a public record, accessible to anyone who searches the property records.

Frequently Asked Questions (FAQs) about Lis Pendens

Here are some common questions and detailed answers to help you navigate the complexities of lis pendens:

1. What Types of Lawsuits Justify a Lis Pendens?

A lis pendens is typically appropriate when the lawsuit directly involves a claim to the title, ownership, or right to possess real property. Examples include:

Quiet title actions: Lawsuits to determine clear ownership of property.
Foreclosure actions: Lawsuits initiated by a lender to take possession of property due to mortgage default.
Partition actions: Lawsuits to divide property co-owned by multiple parties.
Specific performance actions: Lawsuits seeking to force the sale of property under a contract.
Construction lien foreclosures: Lawsuits to enforce a mechanic’s lien against a property.

However, a lis pendens is generally not appropriate for lawsuits seeking only monetary damages, even if the damages relate to the property. For instance, a lawsuit for breach of a construction contract where the only relief sought is money would likely not justify a lis pendens.

2. Who Can File a Lis Pendens?

Generally, only a party (usually the plaintiff) to a lawsuit involving a claim to real property can file a lis pendens. In some jurisdictions, an attorney representing the party can file it on their behalf. The party filing the lis pendens must have a legitimate claim to the property and a good faith basis for the lawsuit.

3. How Do I Find Out if a Property Has a Lis Pendens Filed Against It?

The easiest way is to conduct a title search of the property records at the county recorder’s office or online, if available. You can also hire a title company to perform a title search and provide a title report, which will reveal any recorded liens, encumbrances, and lis pendens affecting the property.

4. What Information Does a Lis Pendens Typically Include?

A properly drafted lis pendens will usually contain the following information:

Names of all parties involved in the lawsuit (plaintiffs and defendants).
Legal description of the property affected.
Case number and court where the lawsuit is pending.
Date the lawsuit was filed.
Statement that the lawsuit affects title to or possession of the property.
Signature of the party or their attorney filing the notice.

5. What is the Difference Between a Lis Pendens and a Lien?

While both can affect a property’s title, they are fundamentally different. A lien is a financial claim against the property, securing a debt or obligation. Examples include mortgages, tax liens, and mechanic’s liens. A lis pendens, on the other hand, is a notice of a pending lawsuit involving a claim to the property itself. It doesn’t create a financial obligation but serves as a warning to potential buyers and lenders about the ongoing litigation.

6. Can a Lis Pendens Be Removed?

Yes, a lis pendens can be removed in several ways:

Resolution of the lawsuit: If the lawsuit is dismissed, settled, or the plaintiff loses, the lis pendens becomes ineffective and should be released.
Court order: A court can order the lis pendens to be expunged (removed) if the lawsuit is determined to be without merit or if the claimant fails to adequately demonstrate a connection between the lawsuit and the property.
Bonding off: In some jurisdictions, the property owner can post a bond with the court to protect the claimant’s potential interest in the property. This allows the lis pendens to be removed while the lawsuit proceeds.
Voluntary release: The party who filed the lis pendens can voluntarily release it by recording a written release with the county recorder’s office.

7. What Happens if I Buy Property with a Lis Pendens?

You are essentially buying the property subject to the outcome of the lawsuit. If the plaintiff wins the lawsuit, your ownership or interest in the property could be affected or even extinguished. It’s crucial to thoroughly investigate the underlying lawsuit, understand the potential risks, and consult with an attorney before proceeding with the purchase. You might also want to negotiate with the seller to address the lis pendens, such as requiring them to resolve the lawsuit before closing or obtaining title insurance that specifically covers the potential claim.

8. Can a Lis Pendens Be Challenged?

Yes, a property owner can challenge a lis pendens by filing a motion to expunge or motion to quash the notice. The grounds for challenging a lis pendens vary depending on the jurisdiction but may include:

The lawsuit does not involve a claim to real property.
The claimant lacks a good faith basis for the lawsuit.
The lis pendens was not properly filed or lacks required information.
The lawsuit is unlikely to succeed on its merits.

9. Is a Lis Pendens the Same in Every State?

No. The specific rules and procedures governing lis pendens vary significantly from state to state. Some states have stricter requirements for filing a lis pendens and offer more robust protections for property owners against improperly filed notices. It’s essential to consult with an attorney familiar with the laws of the specific jurisdiction where the property is located.

10. How Long Does a Lis Pendens Last?

A lis pendens typically remains in effect until the underlying lawsuit is resolved or until a court orders its removal. Some states have specific statutes that limit the duration of a lis pendens, requiring it to be renewed periodically. If the lawsuit is dismissed or settled, the claimant should promptly release the lis pendens.

11. What is the Cost to File a Lis Pendens?

The cost to file a lis pendens typically includes recording fees, which vary by county. There may also be attorney fees associated with preparing and filing the notice. The total cost can range from a few hundred dollars to several thousand, depending on the complexity of the case and the attorney’s hourly rate.

12. Should I File a Lis Pendens if I Have a Dispute Over Real Estate?

Whether or not you should file a lis pendens depends on the specific facts of your case and the laws of your jurisdiction. If your lawsuit involves a claim to the title, ownership, or right to possess real property, a lis pendens may be a valuable tool to protect your interests. However, it’s crucial to consult with an experienced real estate attorney to assess the merits of your claim, ensure that the lis pendens is properly filed, and understand the potential consequences of filing such a notice. An improperly filed lis pendens can expose you to liability for damages, including attorney fees.