The Massachusetts Appeals Court issued a decision this week on appealing a lis pendens. This decision, DeLucia v. Kfoury (included below), discusses the process for doing so and the consequences of not filing a timely notice of appeal.
What is a Lis Pendens?
A lis pendens is a notice of a pending lawsuit affecting “title to real property or the use and occupation thereof or the buildings thereon.” A lis pendens may be obtained by a party involved in such a lawsuit, by showing that the lawsuit affects real property and that the party has verified the lawsuit.
Compared to a preliminary injunction, where a party needs to show a likelihood of success on the merits of a claim, a lis pendens is usually easier to obtain. Once approved by the court, a party can record the lis pendens in the land records, which puts the public on notice about the pending lawsuit. The practical implication of a lis pendens is that it keeps a sale of property from occurring: few buyers will want to purchase property knowing that a lawsuit affecting its title remains ongoing.
Appealing a Lis Pendens
Under Massachusetts’s lis pendens law, a party has a right to appeal a lis pendens to a single justice of the Appeals Court. The purpose of this is to allow a party to have an immediate right of appeal. As a lis pendens can have serious implications for the sale of property, this right of appeal is intended to provide a “check” on this type of order.
An appeal to a single justice of the Appeals Court, commonly known as an “interlocutory appeal” (done while the trial court case remains ongoing), comes with an important requirement: such an appeal must be filed within thirty days of the trial court decision. No exceptions exist for this deadline.
In Delucia, the claimant attempted to appeal the lis pendens decision after this deadline. The Appeals Court, in keeping with established law on this subject, held that the appeal was “dead on arrival” due to being untimely filed. This is keeping with other, similar decisions on appeals with strict deadlines: if you do not timely appeal, the Appeals Court will dismiss the appeal.
Practical Considerations On Appealing a Lis Pendens
As the Appeals Court noted in Delucia, the dismissal of the lis pendens appeal was not too harsh of an outcome for the party seeking this appeal. Rather than attempting to appeal the lis pendens, a party can simply defend itself in the trial court case, and seek to have the case dismissed if it considers the matter to be meritless. Here, the dismissal of the appeal simply prevented the party from having an immediate appeal of the lis pendens; it does not mean that the lis pendens stays recorded in the land records indefinitely.
For this reason, one should carefully consider the decision to appeal a lis pendens. The time and money in doing so might be better spent on the underlining trial court case which, if dismissed, would consequently end the lis pendens. Nonetheless, Delucia is an important reminder of the importance of timely filing an appeal.
If you find yourself dealing with a lis pendens, contact me for a consultation. An experienced real estate litigation attorney can help you determine the best way to address this legal matter.DeLucia v. Kfoury