What are my options if a Lis Pendens is Wrongfully Filed Against my Property?

A Lis Pendens, also known as , is a legal notice approved by a Massachusetts judge that is recorded at the Registry of Deeds to which the related property is situated. This legal notice provides record notice that there is a legal action pending against the real estate at issue and/or named in the lawsuit. A Lis Pendens may only be allowed if the applicant makes a claim of a right to title to real property or the use and occupation thereof.  The Lis Pendens differs from a real estate attachment in that the Lis Pendens relates to title or occupation of real property and an attachment is a remedy to secure assets to satisfy a potential judgment or prohibit transfer or concealment of property that could satisify a judgment. 

The effect of the Lis Pendens is to "cloud" that title to the property, or otherwise, create a defect in title that will discourage any potential purchasers or transferees from accepting title to the property.  It can also interfere with and prevent a property owned from obtaining a loan whereby the property is being used as collateral for the loan (mortgage). In almost all instances, no purchaser of real estate or lender will complete a transaction and accept title with a legally valid Lis Pendens recorded against the property.  In other words, the title will need to be cleared and the Lis Pendens released before a property owned can warrant clear title to any prospective purchaser or mortgagee (lender). 

The pertinent Massachusetts statute that governs the use and application of a lis pendens is Mass.Gen. Laws ch. 184 s. 15.  The Statute sets the procedure and requirements for obtaining a Notice of Lis Pendens. In order to obtain a Lis Pendens, an applicant must file a verified complaint; identify the real estate and property owners; and describe a claim that relates to title or occupation of the real property.  

What are your options if a Lis Pendens is Wrongfully Filed Against your personal or business property?

In the instance of a Notice of Lis Pendens that was inadvertently filed against a property, a qualified real estate attorney can help you clear title.  There are some cases where the property address or recording information was misidentified by the lis pendens application; an old title abstract was relied on; or there was some other type of clerical error either in drafting or recording the notice.  In these cases, the applicant will release the notice voluntarily.  

In other instances, an applicant who has deliberately an/or has in bad faith filed a notice of Lis Pendens against a property is subject to civil liability. A respondent to a Lis Pendens may file a special motion to dismiss on the basis that it is frivolous. "The special motion to dismiss shall be granted if the court finds that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds." M.G.L. ch. 184, s. 15(c).  If the Court grants the special motion to dismiss, it will dissolve the Lis Pendens and may award legal fees and expenses (including recording fees) associated with the dissolution of the notice.  Legal fees may be awarded for any discovery (including document requests, interrogatories or depositions) related to the dissolution of the notice.  

If you have questions about a Lis Pendens or one was recorded against your property, contact one of our Lynnfield Real Estate and Litigation lawyers for a free consultation.