What is Lis Pendens in Real Estate
A lis pendens is a recorded, written notice that a lawsuit involving a particular property is pending in court. Once properly recorded in the county where the real property is located, it serves as constructive notice to potential buyers, lenders, and anyone else with an interest that the case could affect title, ownership, or a planned sale or mortgage. In practice, it clouds the property’s title, making it hard for a seller to sell or a buyer to purchase until the underlying lawsuit reaches an outcome (through settlement, dismissal, or trial). Typical grounds include foreclosure, easement disputes, quiet title, or fraud claims tied to the land; it does not apply to personal property. A real estate attorney or real estate lawyer usually prepares and files the notice to protect a client’s claim, and to keep later purchasers from being deemed “innocent” of the pending dispute. For more details, keep reading.
What Is Lis Pendens in Real Estate? (Plain-English Definition & Why It Matters)
What is lis pendens in real estate? In short, “lis pendens” (Latin for “suit pending”) is a public notice that a pending lawsuit could determine who owns a particular property, what interest burdens it, or whether someone can foreclose on it. Think of it as a flag attached to the property’s title indicating “lawsuit pending—proceed with caution.”
Scope: It attaches only to real property (houses, condos, land)—not personal property like cars or furniture.
Function: By giving constructive notice, it prevents later buyers or lenders from claiming they didn’t know about the dispute. Anyone who takes the property after a lis pendens notice is recorded takes it subject to the outcome of that proceeding.
Common uses: Foreclosure on a mortgage or deed of trust, easement location or existence disputes, quiet title (e.g., forged deed, boundary issues), and contract fights over a purchase agreement.
Who files: Typically the plaintiff in the lawsuit, via a real estate attorney, after filing the complaint in the appropriate superior court (or equivalent).
Because a lis pendens filed against a property can freeze deals and financing, property owners often consult an attorney early—both to avoid wrongful filings and to move quickly if a release or expungement is warranted.
Understanding Lis Pendens: How It Works Under Civil Procedure
A lis pendens sits at the intersection of real estate and civil procedure. Here’s the typical flow:
A. The lawsuit and the “connection” to the land
The filer must have an underlying lawsuit that directly affects title, the right to sell, or an interest in the land (for example, to foreclose a mortgage, enforce an easement, or resolve ownership).
Pure money claims without a real estate connection do not qualify. A court can strike a notice that lacks proper grounds.
B. Filing requirements and recording
After filing the complaint in court, the party (usually the plaintiff) prepares a written notice of lis pendens and records it in the county where the property is located.
“Properly recorded” matters: incorrect legal description, wrong county, or missing case details can undermine the notice.
Once recorded, the notice becomes part of the public notice system—title companies, lenders, and purchasers will see it during due diligence.
C. Legal effect on title and third parties
The recording provides constructive notice to any person later dealing with the property (a buyer, lender, or purchaser).
Anyone who acquires an interest afterward is bound by the lawsuit’s outcome; they take subject to it. This is why a lis pendens is sometimes described as “clouding” the property’s title.
D. Jurisdictional differences (other states)
Other states use different labels and filing requirements (e.g., “notice of pendency”). Some require a preliminary court review; others allow recording upon filing the complaint.
Remedies (like a motion to expunge/cancel or a requirement to post security) also vary. Local law dictates the exact steps.
E. Who should guide the process?
A seasoned real estate lawyer or attorney ensures the lis pendens functions as intended, meets civil procedure rules, and avoids sanctions for misuse. They can also advise owners on removal strategies if a notice is improper.
When and Why to File a Lis Pendens (and When Not To)
A lis pendens is powerful—used correctly, it protects legitimate claims; used carelessly, it invites penalties.
A. Solid grounds to file
Foreclosure/mortgage default: The lender (plaintiff) files suit to foreclose and records a notice so later buyers can’t sidestep the case.
Easement or boundary dispute: A neighbor seeks to establish or relocate an easement; a notice preserves priority while the trial determines location and scope.
Title/ownership challenges: Quiet title actions, fraudulent deeds, or disputes over the owner of record.
Specific performance of a purchase contract: The buyer claims the seller breached an agreed sale; the notice prevents transfer to someone else before the complaint is resolved.
B. Risky or improper uses
Money damages only: If the suit seeks only money and doesn’t affect title, a lis pendens is improper.
Harassment leverage: Filing to coerce settlement can backfire; courts can award fees, order the filer to post security, or expunge the notice.
Wrong county or missing details: An improperly recorded notice may be void and expose the filer to costs.
C. Strategic benefits and costs
Benefits: Preserves the plaintiff’s position; alerts the market; deters transfers that could complicate the proceeding; keeps later interests subject to the outcome.
Costs: Freezes liquidity; complicates refinancing; spooks lenders and potential buyers; may reduce offers or force price concessions; invites motions by the defendant.
Example: A buyer sues for specific performance and records a notice. The seller cannot cleanly transfer to a third purchaser; title remains clouded until trial or settlement.
D. Consult counsel early
Speak with a real estate attorney before filing. Counsel will test grounds, verify filing requirements, and forecast the likely outcome, including whether the court might require security or swiftly remove an improper notice.
If you’re planning to move to Western New York—or you’re already a local resident—understanding lis pendens is just one part of navigating real estate. For more helpful tips on buying and selling homes, be sure to check out Carol Klein WNY Homes, where we cover neighborhood insights, market trends, and step-by-step guidance for a smooth purchase or sale.
Practical Effects on Sales, Purchases, Financing, and Day-to-Day Ownership
A lis pendens reshapes how a property owner, buyer, and lender approach the transaction.
A. For owners and sellers
Expect delays: Title companies flag the notice, and closings stall until the lawsuit is resolved or the notice is lifted.
Negotiation leverage shifts: Buyers may demand discounts or walk away; some contracts include request rights to cancel if a lis pendens appears.
Managing the cloud: Owners often move to expunge/cancel the notice, post security, or fast-track the proceeding to restore marketability.
B. For buyers and purchasers
Diligence is non-negotiable: A recorded notice means the purchase will be subject to the outcome of the pending litigation.
Financing hurdles: Many lenders will not fund with a suit pending that could affect title; others require escrow holdbacks or title endorsements—if available at all.
Contract planning: Build in contingencies for title clearance and timelines tied to trial or settlement milestones.
C. For lenders and mortgage servicers
Underwriting impact: A lawsuit involving the collateral undermines security; until the cloud lifts, the mortgage may not close.
Foreclosing parties: In a foreclosure, the lender’s own lis pendens preserves the action’s priority so later parties cannot dilute its lien position.
D. Title insurance and the public record
Recorded means discoverable: The county index is the authoritative public notice.
Title insurers treat a lis pendens as a present risk; coverage is typically excluded unless resolved or specifically endorsed.
E. Different approaches across jurisdictions
Other states may require a court’s preliminary review, affidavits, or heightened grounds before the notice can be recorded. Some demand a bond (security) to mitigate wrongful-filing harm.
Always verify local law; a real estate lawyer can map the proper sequence: complaint → lis pendens filed → service → motion practice → trial/outcome → cancellation/release.
