What is Lis Pendens in Florida?

You may have seen the Latin term “lis pendens” while scrolling through real estate listings or at an open house or real estate auction. Understanding what it is, and how legal proceedings relate to real property in Florida, can help you make an informed decision about how to navigate sales connected to legal proceedings, including probate estate administrations and collections cases.

What Does Lis Pendens Mean?

Lis pendens is a Latin term that literally means “lawsuit pending.” In a modern context, it is a notice filed against real estate that is under the control of the courts because of a pending lawsuit. It is often referred to as a “cloud on title”. This “cloud” makes it hard for the owner to sell the property or attain financing until the lis pendens is removed. This puts pressure on the seller to resolve the lawsuit and pay off any outstanding debts.

Some of the most common types of lawsuits to affect these properties are:

• Probate disputes
• Foreclosure actions and mortgage defaults
• Real property contract disputes
• Divorce cases
• Quiet title actions

The purpose of this filing is to notify would-be buyers that if they acquire the property, their ownership could be affected by the outcome of the pending litigation. For example, assume the pending lawsuit is over which beneficiary should be awarded the home as part of a deceased’s estate administration. The seller in this kind of case would be the personal representative for the estate. Any buyer taking ownership of the property needs to know that if the Court awards the property to a beneficiary, their purchase agreement may be undone.

Lis pendens also alerts creditors and collections agencies interested in the property that it is currently involved in litigation. When that happens, lenders will be unlikely to close on a mortgage, home equity line of credit, or other secured financing until they are able to record their interest and secure the debt.

When to File a Notice of Lis Pendens

A lis pendens should only be filed when the lawsuit related to the real estate will affect the actual title and right of possession of the property – not just to recover monetary damages from the property. To file a notice, the lawsuit involved must be based upon either:

1. A duly recorded instrument or
2. A matter which has a “fair nexus” between title over the property and the dispute

Under the first option, the initial pleading in the lawsuit has to be based on a “duly recorded instrument” related to the property (such as a deed or secured mortgage). That instrument must be direct evidence of the claim itself and contain a legal description of the property. The plaintiff in the lawsuit (the one claiming an interest in the property) is allowed to file as a matter of right.

Under the second option, the plaintiff must establish that a “fair nexus” exists between the ownership of the property and the dispute in the lawsuit, and the claim must be made in good faith. When the plaintiff’s interest in the property expires, so will their right to lis pendens.

How to File a Notice of Lis Pendens

According to Florida Statute, § 48.23, a notice must be recorded with the Public Records office (sometimes called the Register of Deeds) in the county where the property is located. The notice must contain:

1. Name of the parties
2. Date of the institution of the action, the date of the clerk’s electronic receipt, or the case number of the action
3. The name of the court in which it is pending
4. A description of the property involved or to be affected
5. A statement of the relief sought as to the property

Can You Purchase Property Subject to Lis Pendens?

A Notice of Lis Pendens does not itself assert any claim on the property it is issued against. That means there is nothing stopping a person from buying the property subject to lis pendens. However, any purchase is subject to later orders by the court in the pending lawsuit.

This kind of conditional sale can be undesirable for buyers. So while this does not prohibit the sale of the property, it does make the property almost unsellable because the buyer would be stepping into the legal shoes of the seller, and will be bound by any judgment or order entered against the seller, often without control over the litigation itself.

Get Help Navigating Lis Pendens Claims on Florida Property

If you are trying to buy a property with a recorded lis pendens or have a claim against a property that you need to protect against sale, you may need the help of an experienced probate litigation attorney to resolve the cloud on the title or protect your interests in the property. At Harrison Estate Law, P.A., our probate team can help consider your options and address the notice in court and in the Public Records office, so you know your property rights are protected. Contact us here or call 352-559-9828 to get help today.