Lis Pendens: Litigation Pending

Lis Pendens: Litigation Pending

Our language is full of Latin phrases that have worked their way into colloquial English; light-hearted phrases like carpe diem (seize the day), tabula rasa (blank slate), and tempus fugit (time flies) come to mind. The American legal system has its own exhaustive list of Latin legal phrases, none of which strike this same upbeat tone. One of the more daunting Latin legal phrases one could come across, especially in land use and real estate law, is lis pendens, which means “litigation pending.”

The lis pendens has historically been viewed as a powerful tool to protect persons claiming an interest in certain real estate and third parties who would not otherwise know that the property is the subject of a lawsuit.

To see “lis pendens” associated with a parcel of real property means that the property is the subject of an ongoing lawsuit. The purpose of the doctrine of lis pendens is to put the entire world on notice,1 or more realistically, anyone interested in the disputed property, that there is ongoing litigation related to that property. This notice is achieved by recording, with the registry of deeds for the county where the property is located a “memorandum of lis pendens,” so that anyone who completes a registry search on the property will know about the pending litigation. However, a complainant cannot simply fabricate a dispute and record a memorandum of lis pendens for any reason or no reason at all. For example, if a property owner decides to list her house for sale, and a neighbor decides he doesn’t want anyone new coming into the neighborhood, the neighbor cannot just go down to the local registry of deeds and record a memorandum of lis pendens for no other reason than to chill the sale. The Massachusetts law that governs procedures for a lis pendens, G.L. c. 184, § 15, is a protective statute, designed to safeguard the rights of everyone involved: the complaining party, the property owner, and anyone else with an interest in the property.

The process for recording a memorandum of lis pendens starts when a plaintiff files a lawsuit that “affects title to real property or the use and occupation thereof or the buildings thereon.”2 A common example is where there has been a failed purchase and sale agreement. The buyer may want to enforce the sale, but the seller backed out; the buyer sues to enforce the purchase and sale agreement and wants to ensure that the owner does not sell the property to someone else in the meantime, so the buyer asks the court for a memorandum of lis pendens. As a preliminary hurdle, the court will not endorse the memorandum of lis pendens unless the plaintiff has filed a verified complaint, meaning that the plaintiff has attested to the truth of the facts as asserted in the complaint. Once the court endorses the memorandum for lis pendens, the plaintiff can record the memorandum with the local registry of deeds.

A plaintiff benefits by recording a lis pendens because any person who performs a registry search will find it and be on notice that this party is asserting a right or claim to the property at issue in the lawsuit. In addition to providing a statutory mechanism by which a plaintiff can tell everyone that he is asserting a right or claim to the property, providing such notice protects potential purchasers or interested parties as well. Recording the lis pendens is what puts the world on notice that the property is the subject of a lawsuit, and what ultimately protects the rights of the plaintiff and of anyone else not a party to the proceeding.

The Massachusetts lis pendens statute serves to protect the rights of the property owner as well. A memorandum of lis pendens associated with a parcel of real estate creates a “cloud on title” to the property, which can have harsh consequences. Most potential buyers will not purchase property with a cloud on the title such as a lis pendens, and similarly, title insurance companies generally will not insure a property subject to a lis pendens. To protect owners from being effectively powerless to sell the property, the statute provides for certain requirements that must be met before the registry of deeds accepts the memorandum of lis pendens, such as that the registry cannot record the memorandum unless it has been endorsed by the court, and the plaintiff has provided an affidavit attesting that he has served the defendant with notice of the lis pendens.3

Furthermore, to ensure that a memorandum of lis pendens only be recorded when the dispute truly warrants it, the defendant has the opportunity to either ask the court to dissolve the memorandum of lis pendens, or, in certain circumstances, to file a “special motion to dismiss.” If the plaintiff has not complied with one of the requirements of the statute, such as, if the lawsuit does not actually affect title to real property, if the plaintiff has not served notice of the lis pendens on the defendant, or if the plaintiff’s action is frivolous or “devoid of reasonable factual support,” the court can dismiss the entire claim upon which the lis pendens was based. Once dissolved, or the court dismisses the claim, the cloud on the owner’s title is gone.

However, there is a disparity between a complainant’s entitlement to a memorandum of lis pendens and what a property owner must show to have the lis pendens removed. Under G.L. c. 184, § 15, the court’s decision whether to endorse the memorandum of lis pendens so that it can be recorded is only concerned with the subject matter of the case. In other words, if the plaintiff shows the court that the subject of the dispute involves title to real property, the court is almost always going to endorse a memorandum of lis pendens. On the other side, if the defendant wants to undo the lis pendens, or get rid of the claim related to the property entirely, she will have to move the court based on the merits of the plaintiff’s claims. Put differently, if the plaintiff has properly complied with the procedural requirements, the defendant can only be rid of the lis pendens by showing the court that the underlying dispute is frivolous, or without a basis in law or fact. The defendant wishing to undo the lis pendens has a higher burden than the plaintiff who obtained it in the first place, but this is also, in some ways, a warning to a potential claimant, tempted to file a frivolous case. If he does so, and records a memorandum of lis pendens for an underlying claim that has no basis in law or fact, the defendant has the opportunity, very early on in litigation, to demonstrate to the court that the claim is without merit and should be dismissed.

There are a couple important things to keep in mind about this “scary” Latin phrase. First, a lis pendens is not a type of legal claim; it does not create any right or interest in property, and a plaintiff cannot file a lawsuit for a remedy of “lis pendens.” A lis pendens can only exist derivative of another underlying claim, which must relate to a right, title, or interest in real property.4 The memorandum of lis pendens itself only reflects the action’s pendency—it does not reflect either party’s right, title, or interest in the real property. Furthermore, although the purpose is to provide notice that there is an ongoing lawsuit related to rights or interests in a piece of real property, a lis pendens does not, by itself, conclusively prevent the owner of the property from conveying title during the pendency of the litigation. Often, the practical effect of a lis pendens is to prevent a sale or transfer of the property until the conclusion of a lawsuit. However, the recorded lis pendens does not have the same force of a traditional lien, preventing the owner from selling the property until the lis pendens is dissolved.5 Again, the purpose is notice; a third party could certainly purchase real property subject to an ongoing lawsuit, but they do so with the knowledge that the pending litigation could impact their right, title, or interest in the property. Another appropriate Latin phrase comes to mind in that situation—caveat emptor (buyer beware).

Finally, although the Massachusetts statute allows a plaintiff to ask the court for endorsement of a memorandum of lis pendens generally in any proceeding “that affects title to real property or the use and occupation thereof or the buildings thereon,” there are some exceptions.6 Most commonly, a plaintiff seeks a memorandum of lis pendens in an action for specific performance, such as enforcement of a purchase and sale agreement or right of first refusal, claims of adverse possession or other boundary disputes, quiet title disputes, and foreclosure actions. Proceedings “under statute, ordinance or by-law regulating land use,” however, are specifically exempt from the lis pendens statute. If, for example, an abutter appeals a zoning board’s special permit decision or an aggrieved party contests a conservation commission’s order of conditions, the plaintiff in these types of action cannot request an endorsement of a memorandum of lis pendens.

The lis pendens has historically been viewed as a powerful tool to protect persons claiming an interest in certain real estate and third parties who would not otherwise know that the property is the subject of a lawsuit. When used improperly—frivolously, dishonestly, or without notice—the lis pendens can be daunting to property owners and lawyers alike. However, to fully understand the doctrine is to appreciate the way that it can protect the rights of all parties, and non-parties, to proceedings involving title to real property.

1Debral Realty, Inc. v. DiChiara, 383 Mass. 559, 560 (1981)

2G.L. c. 184, § 15(a)

3See Sharari v. Laura Road Holdings LLC, 2023 WL 4404322 (Mass. Land Court 2023), for a case where the court dissolved a memorandum of lis pendens because the plaintiff had not sought endorsement by the court.

4Sakab Saudi Holding Co. v. Aljabri, 578 F.Supp.3d 140, 145 (D. Mass. 2021).

5Heller v. Turner Bros. Const., Inc., 40 Mass. App. Ct. 363, 365 (1996).

6G.L. c. 184, § 15(f).

Bridget M. Rose

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Bridget M. Rose