Lis Pendens

What is a Notice of Lis Pendens?

Lis Pendens is Latin for “suit pending”.   Lis Pendens are used to give notice to the world that there is a lawsuit pending that involves real property and they are commonly filed in partitions, foreclosures, and disputes involves title to real property.  A person’s right to record a lis pendens is set forth in Fla. Stat. § 48.23.  Lis Pendens are typically prepared at the outset of a lawsuit and are recorded by the Clerk of Court in most cases upon their filing.  By recording a Lis Pendens, a plaintiff is telling the world that the lawsuit involves a particular piece(s) of real estate.  The Lis Pendens acts to encumber the real property described in it during the litigation creating a cloud on its title and often times preventing the owner from selling or mortgaging the property it as he does not have marketable title.  This helps to ensure that the property is preserved during the course of the litigation. 

And What goes inside a Notice of Lis Pendens?

1.  The names of the parties to the lawsuit;

2. The date of the that the lawsuit was filed;

3. The legal description of the property that is at issue;

4. The name of the court where the lawsuit  is pending;

5. A statement as to the relief being sought.

But Does a Lis Pendens have to be Founded on a Duly Recorded Instrument?

Not exactly.  A Lis Pendens can be founded on either a duly recorded instrument (e.g. deed, mortgage) or it can be based on a claim affecting the property at issue -even if there is no duly recorded instrument.  The difference is that a lis pendens that is not founded on a duly recorded instrument is effective for just one year.  Moreover, the person who records a Lis Pendens that is not based on a duly recorded instrument may be required by the court to post a bond (this amount is discretionary and set by the court) after an evidentiary hearing is held.  In some instances, the Lis Pendens can also be entirely dissolved by the court when there is no nexus to the real property involved in the case.  . 

The Wrongful Filing of a Lis Pendens has Consequences

The wrongful filing of a Lis Pendens against a property may result in a counterclaim against its filer for “Slander of Title” since it constitutes a falsehood and the dissolving of the Lis Pendens.  A party who successfully dissolves a Lis Pendens in this situation is entitled to an award of attorney fees.

Analyzing the propriety of Lis Pendens takes a careful analysis of the statute and governing law in conjunction with the applicable facts.  Decisions pertaining whether to file a Lis Pendens should be made with care. Contact Maimi Lis Pendens Attorney Andrew Pascale today to discuss your case. This blog does not constitute legal advice and is for illustrative purposes only.