Lis Pendens

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The Latin term lis pendens translates as “suit pending.” This legal term refers to a written notice of a civil lawsuit concerning the title to, or an ownership interest in, a specific real property has been recorded on the property. This notice serves as a constructive notice to anyone interested in purchasing the property, that there is a lawsuit pending that may affect ownership. To explore this concept, consider the following lis pendens definition.

Definition of Lis Pendens

Pronounced    

lis pen-denz

Noun

  1. Notice of a pending lawsuit which concerns real property.
  2. A rule of law placing real property involved in litigation under the court’s jurisdiction until judgment is rendered.

Origin

Latin

What is Lis Pendens

Referred to as a “certificate of pending litigation” in some jurisdictions, a lis pendens is a notice that a lawsuit has been filed in civil court, which may affect the title to, or ownership of, a piece of real estate. A lis pendens is filed with the county recorder of real property, effectively giving notice to anyone who may be considering purchasing the property of the pending lawsuit. The notice advises an interested buyer that, if he purchases the property with the lawsuit pending, his ownership would be subject to the litigants’ rights, however the lawsuit is decided, no matter how long after his purchase of the property.

While many Latin terms are being left behind in favor of using plain English in legal writings, a lis pendens is an actual document, by that actual title, in many jurisdictions. A lis pendens is usually filed by the plaintiff to a lawsuit, though it may be filed by a defendant who files a counterclaim.

What Types of Lawsuits Allow for a Lis Pendens Filing

A lis pendens cannot be recorded with the county recorder for just any lawsuit in which some underlying event relates to the real property. A lis pendens may be filed when the lawsuit is asking for relief that is directly related to that real property. A lawsuit requesting monetary damages, with no relief directly related to the ownership or interest in the property itself is not appropriate for a lis pendens. Situations in which a lis pendens is appropriate may include a lawsuit for:

For example:

Mark Painter installs new plumbing in John’s home. John is unhappy about the bill for the work, which amounts to $3,500 for parts and labor. After a month, when John hasn’t paid, Mark files a lawsuit to enforce a mechanic’s lien, asking for the full amount of the invoice, plus interest. He then he records a lis pendens on John’s property.

Because Mark’s claim is asking the judge to award money to compensate him for his work, and has nothing to do with the ownership of the property itself, a lis pendens is not appropriate. In the event John contests the lis pendens, as it ties up the title to his property, it is likely the court will deem it invalid and expunge it. In cases of such a misunderstanding, it is unlikely the plaintiff would be penalized for recording the notice.

Effect of a Lis Pendens

Once a lis pendens has been filed with the county recorder, any person or entity who buys the property is bound by the results of the pending lawsuit. Technically, a lis pendens does not prevent the sale of the property on which it has been recorded, though practically, prospective buyers, lenders, and title insurance companies are hesitant to take on the purchase of a property which could later be adversely affected by the pending lawsuit.

Expunging a Lis Pendens

A lis pendens remains in effect until the court renders a judgment on the lawsuit upon which it was recorded, or the case is settled. Because of this, a lis pendens has the potential to tie up title to the property for a very long time. In addition, the notice itself is likely to remain attached to the property until an order expunging the lis pendens has been filed and recorded.

Expunging a lis pendens may be accomplished by one of three methods:

  1. Show the court that the lawsuit does not affect title to, or possession of, the real property subject to the lis pendens.
  2. Show the court that the plaintiff filed the lawsuit in bad faith. This requires showing that plaintiff did not believe he had a valid claim at the time he filed the lawsuit.
  3. Show the court that the lawsuit was filed for improper use. This requires showing that the lawsuit was filed solely for the purpose of depriving the property owner of use of the property, it was filed primarily out of ill will, or that it was filed for the purpose of forcing a settlement that has no relation to the underlying claim in the lawsuit.

In the absence of a settlement or judgment on the lawsuit, the property owner may be able to apply to the court to expunge the lis pendens based on any of the above reasons. An expungement can only be recorded with the county recorder by approval of the court.

For example:

Mary is upset that her ex-husband, James, owes her over $3,000 in back child support, and is making no effort to pay it, even though he earns a substantial salary. Mary learns that James is planning to sell the home, and decides to record a lis pendens on the home that her ex husband was awarded in the divorce, in the hope that James will pay her in exchange for taking the lis pendens off the property.

In order to have the lis pendens expunged (removed), James only needs to show the court that Mary filed the lis pendens solely for the purpose of forcing him to pay her money that has nothing to do with the property. Once the court has issued an order to expunge the lis pendens, James must take it to the county recorder to have the notice removed. In such a case, it is likely that the judge would penalize Mary for her actions.

Related Legal Terms and Issues

  • Adverse Possession – The occupation of land owned by another person with the intention of claiming it as one’s own.
  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Constructive Notice – The assumption that a person received notice of a thing, based upon his actions, his interpreting of facts, or other circumstances.
  • Counterclaim – A claim made to offset, or counter, another claim; a retaliatory claim by a defendant against a plaintiff in a civil lawsuit.
  • Expungement – The act of blotting out, erasing, or wiping out a record.
  • Real Property – Land and property attached or fixed directly to the land, including buildings and structures.