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Lis Pendens

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Lis Pendens

A recorded legal document that gives constructive notice that an action affecting a particular piece of property has been filed in a state or federal court. Lis pendens is Latin for action pending and is in the nature of a “quasi lien.” A person who subsequently acquires an interest in that property takes it subject to any judgment that may be entered; that is, a purchaser pendente lite (pending a lawsuit) is bound by the result of the lawsuit. The theory behind lis pendens is that multiple lawsuits can be avoided if all persons who might become involved with the property are first put on notice that the property is the subject of a lawsuit.

A notice of lis pendens is not the same as placing a lien on, or attaching, real property. It is only notice of a pending action involving title or possession of real property. The action must affect title, or right to possession, of real estate. Thus, it could not be used in a suit to recover attorney fees or real estate commissions. A lien, however, is a charge or security interest against the property; an attachment is a procedure to preserve the property for collection purposes. The end result of filing a lis pendens, however, is the same; that is, the property may not be freely sold or encumbered, and title is thereby effectively rendered unmarketable during the litigation.

The notice of pending action must generally contain the names of the parties, the object of the action, and a description of the affected property. Some states require a court hearing before rendering a lis pendens. From and after the time of recording the notice, the purchaser or encumbrancer of the affected property is considered to have constructive notice of the pendency against the designated parties. An attorney should be consulted before filing a lis pendens; an improperly filed lis pendens could lead to a lawsuit by the property owner for slander of title or malicious prosecution. Such a lis pendens could be removed from the record by filing a “motion to expunge.”

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