An effective tool in pursuing a real estate dispute is a lis pendens. A request for a lis pendens often comes up in property lawsuits and can help protect one’s interest in real estate while a lawsuit is ongoing.
What is a Lis Pendens?
A lis pendens, simply put, is a formal notice of a pending legal action. Per the law, a lis pendens is allowed for a lawsuit that “affects the title to real property or the use and occupation thereof or the buildings thereon . . .” A judge must sign a lis pendens after finding that the underlining lawsuit meets this standard. After a judge approves a lis pendens, it may be recorded in the appropriate registry of deeds as part of the land records.
Recording a lis pendens, on its own, will not stop the buying or selling of property. However, the practical effect of a lis pendens is to preserve the status quo while a lawsuit is ongoing. Few people will buy real estate knowing that a lawsuit affecting the subject property remains ongoing.
Requirements for a Lis Pendens
Compared to a preliminary injunction (another legal tool for preserving the status quo during a lawsuit), a lis pendens is relatively easy to obtain. The lawsuit must affect title to real property and must be verified by the party seeking the lis pendens. This means that the party has affirmed, under the pains and penalties of perjury, that the lawsuit’s facts are correct.
Before recording a lis pendens, the law requires the party to prepare an affidavit stating that notice of the allowance of the lis pendens has been provided to the other parties in the lawsuit by certified mail.
In Superior Court, a lis pendens generally requires a hearing before the Court with proper notice to the other side. While not in the formal rules for other trial courts in Massachusetts, this is the general practice for most lis pendens requests: the court will likely only consider this relief upon notice and hearing to the opposing party.
A party is permitted to seek a lis pendens on an emergency basis by going to court first and not giving the opposing side notice (known as an”ex parte” action). However, a party needs to show a real emergency for doing so. If there is time for the court to hold a hearing and hear from the opposing side, the court will likely require a hearing.
A lis pendens is an effective part of litigating real estate disputes. An experienced real estate litigation attorney can make a real difference in obtaining this relief and getting you the results you need. If you find yourself in a dispute that may justify a lis pendens, contact me for a consultation.