What is a lis pendens? Lis pendens explained

1. Introduction

In this article I explain what a lis pendens is, how it affects your property, and how you can remove one affecting your property. As an attorney I have personal experience removing lis pendens affecting my client’s property. If you are interested in my help in getting rid of your lis pendens, contact me at help@getnate.com

2. What is a lis pendens?

When a lawsuit is filed, the plaintiff (person who filed the suit), may file a lis pendens. A lis pendens is effectively just a notice that tells people there is litigation concerning a certain property. It is only appropriate to file a lis pendens when the lawsuit relates to a certain piece of property and the relief sought in that lawsuit may impact that property. It is meant to protect any potential purchaser by putting them on notice that someone may acquire an interest in the property.

Specifically a lis pendens acts as a “cloud of title” on property. Loidl v. I & E Grp., Inc., 927 So. 2d 1016, 1018 (Fla. 2nd DCA 2006); Phillips v. Epic Aviation, LLC, 234 F. Supp. 3d 1174, 1210 (M.D. Fla. 2017) (“A lis pendens is a harsh and oppressive remedy because it operates as a cloud on the title and effectively prevents an owner from selling the property.)

To be clear, the lis pendens is not a lien on property, it just lets people know that the lawsuit could impact a property.

3. Where is a lis pendens filed?

A lis pendens is filed in the county where the property is located and recorded in the county records.

4. Why would someone file one?

A Plaintiff would file a lis pendens for a few reasons. Usually, they would file it to protect their interest in a piece of property they think they have an interest in. The lis pendens will typically make it difficult for the owner of the property to sell it until the lis pendens is removed.

Additionally, some Plaintiffs and unscrupulous attorneys may file a lis pendens even when it is unwarranted, simply to harass the defendant. I have seen this happen before. A lis pendens is very easy to file on a property. Upon its filing, it has an immediate effect of scaring away potential buyers to the property. Because it is often timely and costly to remove it, it can be an easy way to harass someone.

However, what many people do not realize is that wrongfully filing a lis pendens can backfire on the filing party. The reason being is that if a lis pendens is wrongfully fired, the Court has authority to award attorney fees in favor of the party that seeks the removal of the lis pendens. That means you can potentially have your attorney remove the lis pendens then have the side that filed it pay for the removal.

5. How to remove a lis pendens

If someone filed a lis pendens against your property, it is possible to remove it. However, it is tricky. The statute governing lis pendens, Florida statute is 48.23 is not worded clearly, and is often times confused by attorneys and judges alike.

Nevertheless, in order to remove a lis pendens, your attorney would need to file a motion with the court. The attorney would need to explain to the judge that (1) the action is not founded upon a “duly recorded instrument or lien” and (2) that the proponent of the lis pendens has failed to establish “a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.”

Every case is different, so whether your attorney will be successful will depend on the facts on your case. It will also depend on what analogous cases your attorney can find to prove that the lis pendens was wrongfully issued.

6. Can a lis pendens expire?

Technically, yes. But it is difficult to determine the precise date of expiration. Florida statute 48.2 provides that a lis pendens expires after 1 year of the commencement of the action unless (1) the action is founded on a duly recorded instrument or a construction lien; or (2) the court extends the time for expiration.

The reason it is difficult to determine the precise date is because a judge would need to adjudicate whether the lis pendens is founded upon a duly recorded instrument or construction lien. So even if a year has passed since the action is filed, you will likely still need court intervention to remove the lis pendens.