A lis pendens (Latin: “suit pending”) is a public notice filed in the county land records that warns prospective buyers, lenders, and others that a lawsuit is pending that claims an interest in a specific parcel of real property. It serves as constructive notice that the outcome of that litigation may alter or cloud title to the property. Because of that effect, a recorded lis pendens can make it difficult or impossible to sell, refinance, or otherwise transfer the property until the underlying dispute is resolved or the lis pendens is removed.
Key takeaways
– Lis pendens = “suit pending” — a recorded notice that a lawsuit affecting real property has been filed.
– It places a cloud on title and gives constructive notice to third parties (buyers, lenders).
– It can only be filed when a related legal action is actually pending and must involve a claim to the property.
– Requirements and remedies vary by state; misuse can lead to an expungement order or damages/sanctions.
– Consult a local real estate attorney before filing, defending, or buying property with a lis pendens.
How lis pendens works (plain-language summary)
– Plaintiff files a lawsuit that asserts rights tied to a specific parcel of real estate (e.g., to enforce a purchase agreement, assert a lien, foreclose, or claim an equitable interest).
– After or at the same time as filing the lawsuit, the plaintiff records a lis pendens in the county land records where the property is located. Some states require serving the property owner or other parties as well.
– The recorded lis pendens becomes part of the public chain of title and puts prospective buyers/lenders on notice that title may be affected by the pending litigation.
– If the plaintiff wins, the court’s judgment can affect ownership or create a lien. If the plaintiff loses, the lis pendens should be removed/expunged.
Fast fact
A lis pendens does not itself transfer title. It is a notice mechanism; the legal effect occurs only if the underlying lawsuit succeeds (for example, by entering a lien, ordering conveyance, or overturning a transfer).
When a lis pendens is commonly used
A lis pendens is appropriate only when the lawsuit’s subject matter directly concerns real property rights. Common scenarios include
• Divorce: One spouse files suit claiming an interest in marital real estate. A lis pendens can prevent the titled spouse from quietly selling property that the other spouse contends is marital or subject to division.
– Mortgage default / foreclosure: Lenders or other secured creditors often use public filings to reflect a pending foreclosure or enforcement action (or record a notice of default that functions similarly).
– Contract disputes (real estate purchase/sale): A buyer who alleges that a seller breached a purchase contract and seeks specific performance or an interest in the property can file a lis pendens to protect that claim.
– HOA claims: In some states, homeowners’ associations may assert liens or other claims for unpaid assessments and can record notices that function like lis pendens under local law.
Important limitations
– A lis pendens can only be recorded if there is an actual pending lawsuit or an eligible claim that directly affects title or possession of the property. If those conditions are not present, the lis pendens can be challenged and expunged.
– Procedures and standards for both filing and removing lis pendens vary significantly by state—statutes often define what must be alleged and proved to support a lis pendens and what remedies an owner may obtain.
– Filing a baseless lis pendens may expose the filer to sanctions, attorney’s fees, or liability for damages in many jurisdictions.
How to file a lis pendens — practical step-by-step (general; check local rules)
1. Confirm legal basis
• Verify you have a meritorious claim that specifically affects real property (title, possession, lien, equitable interest). If the claim is purely monetary and not secured by the property, a lis pendens will generally not be appropriate.
2. File the underlying lawsuit
• Most states require the action to be “pending” before recording a lis pendens. File the complaint in the appropriate county court (the county where the property is located).
3. Draft the lis pendens document
• Include: names of the parties, case number and filing court, legal description and street address of the property, concise statement that a claim affecting the property is pending, and the relief sought that implicates the property.
• Follow your state’s statutory form/requirements if one exists.
4. Record the lis pendens in county land records
• Submit the lis pendens to the county recorder/land records office where the property is located. Pay applicable recording fees.
5. Serve any required parties
• Some states require or permit service on the property owner or other affected parties in addition to recording.
6. Preserve proof
• Keep copies of the recorded document, proof of service (if applicable), and the lawsuit file stamped by the court.
7. Monitor and prosecute the underlying litigation
• A lis pendens is not a substitute for moving the case forward; courts may require the filer to show progress or may limit the duration of notice.
How to get a lis pendens removed or discharged — steps for property owners or defendants
1. Review the recorded instrument and the lawsuit
• Confirm the exact allegations and whether the lis pendens adheres to statutory requirements.
2. Seek an early dismissal or summary judgment on the underlying claim (if appropriate)
• If the lawsuit lacks merit, obtaining a dismissal will typically allow the property owner to record a certified copy of that dismissal and remove the lis pendens.
3. Move to expunge or discharge the lis pendens
• Many states have statutory procedures to ask the court to expunge (remove) the lis pendens if the claimant cannot show a probable valid claim affecting the property. File the motion and obtain a hearing.
4. Seek damages or sanctions for wrongful filings
• If the lis pendens was filed maliciously or without a legal basis, ask the court for attorney’s fees, damages, or other sanctions where state law allows.
5. Record an instrument removing the cloud
• After a court order or dismissal, record a certified copy of the court order or other required documentation to clear the title in the land records.
Practical steps for buyers, sellers, and lenders
– Buyers: Do not buy (or obtain title insurance and lender approval) until the lis pendens is resolved. If you proceed, understand you may take the property subject to the outcome of the lawsuit.
Checklist before buying:
• Order a thorough title search and ask about any lis pendens, judgments, or encumbrances.
• Request copies of the underlying complaint and the recorded lis pendens.
• Consult a real estate attorney about risk and remedies (escrow holdback, indemnity, or withdrawing).
• Consider insisting on title insurance coverage that addresses litigation risk (not always available).
– Sellers: Disclose the litigation to prospective buyers. Consider resolving the dispute, bonding over the claim (where permitted), or obtaining a court order that permits sale free of the claim.
– Lenders: A recorded lis pendens will likely prevent the lender from obtaining clear collateral; require resolution before funding or include protective provisions in loan documents.
Commonly asked questions (brief answers)
– What is the purpose of a lis pendens?
• To warn third parties by recording notice that litigation affecting the title or ownership of a specific property is pending, so purchasers assume the risk of that litigation.
– What does discharge of lis pendens mean?
• The lis pendens is removed from the land records (by court order or recording of a dismissal), meaning the filed claim no longer clouds title.
– Who can issue a lis pendens?
• Any party who has filed a lawsuit claiming an interest in property can usually prepare and record a lis pendens, but it must be supported by a legitimate pending action and meet statutory requirements.
– What is meant by “lis” in law?
• From Latin, “lis” means “suit” or “lawsuit”; “pendens” means “pending,” so lis pendens = “suit pending.”
Pitfalls and cautions
– State law varies: Elements, form, notice requirements, and remedies differ by jurisdiction. Some states limit lis pendens to actions seeking title, possession, or equitable relief; others include liens and mortgages.
– False or unsupported lis pendens can lead to legal exposure: courts can expunge the notice, award attorney’s fees, and impose other penalties if the filing was improper or frivolous.
– Timing matters: If you file prematurely (before the action is properly pending), the lis pendens may be invalid.
Sample timeline — plaintiff’s perspective
1. Investigate facts and confirm a property-related claim.
2. File complaint in the correct county court.
3. Record lis pendens with accurate legal description.
4. Serve defendant and proceed with litigation (discovery, motions, trial).
5. If successful, obtain judgment and record any resulting liens, orders, or conveyance documents.
Sample actions — property owner’s defense
1. Evaluate legal sufficiency of the plaintiff’s claim.
2. Move to dismiss or for summary judgment on the claim.
3. File a motion to expunge the lis pendens (if available).
4. Seek a court order removing the lis pendens and, if appropriate, seeking damages for wrongful filing.
The bottom line
A lis pendens is a powerful, public tool to protect a party’s claim in litigation involving real property by giving constructive notice to the world. But because it directly affects marketability of title and property transfers, its use is tightly controlled by statute and case law. Mistakes in drafting, filing, or defending against a lis pendens can be costly. Always consult a local real estate attorney before filing, challenging, or transacting involving a property with a lis pendens.
Sources and further reading
– Investopedia. “Lis Pendens.” (Investopedia explains the concept and common scenarios.)
– Cornell Law School, Legal Information Institute. “Lis Pendens.”
– Thomson Reuters Practical Law. “Glossary: Lis Pendens.”
– HOA Management. “HOA Lien: Understanding Its Impact and How to Avoid It.”
(1) draft a sample lis pendens form for a specific state you name, 2) provide a checklist you can print for buyers or sellers, or 3) summarize your state’s statutory rules for lis pendens — tell me the state.)
(Continuation)
Additional sections
Common state variations and what to watch for
– Requirements to file and serve a lis pendens differ by state. Common differences include:
• Whether the underlying complaint must be filed first or whether a notice may be recorded contemporaneously.
• Specific language or information required (e.g., full legal description, names of parties, court case number).
• Whether the lis pendens creates an actual lien or only constructive notice.
• Procedures and standards for expungement (removal) and penalties for wrongful filings.
– Practical takeaway: always check local statutes and county recorder rules or consult a real estate attorney before drafting, recording, or acting on a lis pendens. (See Cornell Law School, Legal Information Institute; Thomson Reuters Practical Law.)
How title companies and lenders react
– Title insurance: A recorded lis pendens typically appears on a title search and will either prevent issuance of new title insurance or cause a title exception. Title insurers often will not insure over an unresolved lis pendens without an indemnity agreement, court order, or bond.
– Lenders: A lis pendens that affects collateral may cause lenders to place holds on new loans or require resolution before funding. If a mortgage lender files a foreclosure action, it will usually record a lis pendens as part of that process.
– Practical step: Buyers often require a clear title commitment before closing; sellers should resolve lis pendens beforehand or arrange for a mechanism (court order, escrow holdback, identical protections accepted by buyer and lender).
How to remove or challenge a lis pendens
1. Motion to expunge or cancel: Many jurisdictions provide a statutory procedure for the property owner (or another interested party) to ask the court to expunge an improperly filed lis pendens. Grounds may include that the underlying claim does not actually affect title or real property rights or that the notice is defective.
2. Bond or security: Some states allow the party who filed the lis pendens to be required to post a bond to cover damages if the lis pendens is later found groundless. Conversely, a property owner may be allowed to post a bond to secure the plaintiff’s claim and obtain a release from recorded notice in order to sell.
3. Settlement, dismissal, or judgment: Once the underlying lawsuit is resolved—by settlement, dismissal, or final judgment—the plaintiff typically records a release/discharge of lis pendens with the county recorder or clerk, which clears the cloud on title.
4. Damages and sanctions: If a lis pendens was filed maliciously or without a valid basis, the filer may face sanctions and potentially be liable for damages (e.g., slander of title or tortious interference). Remedies vary by state.
– Practical step: If you receive notice of a lis pendens on your property, contact an attorney immediately to evaluate expungement or other remedies.
Practical steps — how to file a lis pendens (generalized process)
Note: This is a general overview. Local practice and statutory requirements vary widely—hire an attorney or consult local court rules.
1. Confirm your claim affects real property: The lawsuit must involve title to or the right to possession of an identified parcel (land, buildings, fixtures).
2. File the underlying lawsuit in the appropriate court: Many jurisdictions require the complaint to be filed and a case number assigned before a lis pendens is recorded.
3. Prepare the lis pendens form or notice: Include required elements—case number, caption, names of parties, legal description or parcel ID, and a clear statement that a suit involving the property is pending.
4. Record the lis pendens in the county where the property is located: Submit the notice to the county recorder/land records office; pay recording fees. Some counties publish forms or online recording portals.
5. Serve required parties if necessary: Some states also require service on the property owner, mortgagees, or others.
6. Monitor and maintain: Track the lawsuit and, if possible, arrange for periodic updates with counsel.
7. Upon resolution, file a release or discharge: When the litigation concludes or you voluntarily withdraw the claim, record a notice of discharge so the title is cleared.
– Practical tip: Mistakes in drafting or recording can result in expungement of the notice and loss of leverage; consider using counsel.
Practical steps — how to respond if a lis pendens is recorded against your property
1. Obtain the recorded document and read it carefully: Note the basis for the claim, parties, and case number.
2. Contact your title insurer and lender: Notify relevant parties and learn whether they will permit any transactions while the lis pendens remains.
3. Consult an attorney promptly: Determine whether the underlying suit actually affects your property rights or whether the lis pendens is defective.
4. Consider immediate remedies:
• Move to expunge or strike the lis pendens.
• Seek a court order requiring the filer to post a bond.
• Negotiate with the filer for a release in exchange for limited escrow or other protections.
• Defend the underlying lawsuit if necessary.
5. If the lis pendens is wrongful, pursue sanctions or counterclaims where appropriate.
– Practical tip: Acting quickly preserves options—waiting can let a cloud linger and harm marketability.
Examples to illustrate how lis pendens works
Example 1 — Divorce dispute
– Facts: Spouse A holds title to the family home; Spouse B files for divorce alleging an equitable interest and sues for division of community/marital property. Spouse B records a lis pendens.
– Consequence: Spouse A will have difficulty selling the home because any purchaser would take subject to Spouse B’s claim. If the buyer purchases notwithstanding the lis pendens and the court later awards interest to Spouse B, the buyer’s ownership can be impacted.
– Resolution: The parties either settle the property division and record a release or litigate to final judgment.
Example 2 — Contract dispute between buyer and seller
– Facts: Buyer A signs a purchase contract with Seller and later sues Seller for specific performance (to force the sale). Buyer A records a lis pendens.
– Consequence: Seller’s ability to sell to Buyer B is impaired because Buyer A’s claim may entitle Buyer A to the property if the court orders specific performance.
– Resolution: Court enforces the contract, Buyer A obtains title, or court denies specific performance and Buyer A records a release.
Example 3 — Lender foreclosure
– Facts: A mortgage lender sues a delinquent borrower to foreclose and records a lis pendens.
– Consequence: The homeowner cannot easily sell or refinance while the foreclosure action is pending; prospective buyers will be on notice of the lender’s claim.
– Resolution: Foreclosure proceeds if lender prevails; upon foreclosure and sale or dismissal, the lis pendens is discharged.
Common misunderstandings
– “Lis pendens creates a lien.” Not always. In many jurisdictions a lis pendens creates constructive notice rather than an actual statutory lien; the effect is to alert buyers and cloud title, not automatically transfer or encumber the property. The exact legal effect depends on state law.
– “A lis pendens prevents any sale forever.” No—sales can still proceed in certain circumstances (e.g., court-ordered sale, buyer accepts risk, or parties reach an agreement). But it makes sales more difficult and risky.
– “Anyone can file one at no cost.” While technically many people can record a notice, a lis pendens filed without a valid underlying property claim is risky and may trigger legal sanctions and damages.
Risks and potential for abuse
– Strategic filing: Some parties use lis pendens as a tool for leverage in disputes (to block sales or extract settlements). That use may be legitimate but can be abused.
– Wrongful filing consequences: Courts can impose fines, award attorney fees, and grant damages for slander of title where notices are filed maliciously or without a proper legal basis.
– Practical protection for owners: If you are the target of a questionable lis pendens, pursue expungement quickly and document damages.
Checklist: Before buying property with a recorded lis pendens
– Obtain and review the recorded lis pendens and the underlying court filing.
– Contact a real estate attorney to assess the risk that the claim could affect the title you will receive.
– Ask the title company whether it will insure over the claim; if not, seek an indemnity or escrow arrangement.
– Consider requiring the seller to obtain a court order clearing title or to post a bond.
– Consider postponing purchase until the suit is resolved unless you accept the risk and have protections in place.
Cost and timeline considerations
– Costs: Recording fees are usually modest (county-specific). Legal fees for drafting, recording, and litigating lis pendens matters can be substantial. If the other party moves to expunge, expect litigation costs.
– Timeline: Lis pendens will typically remain in place until the underlying lawsuit is resolved or the notice is removed by court action. This can be months or years depending on the court and complexity.
When to consult a lawyer
– Filing a lis pendens or responding to one implicates title issues, statutory requirements, and potential damages for improper filings. Consult a real estate or litigation attorney whenever:
• You intend to file a lis pendens.
• A lis pendens is recorded against your property.
• You are negotiating a sale of property subject to a lis pendens.
• You believe a lis pendens was recorded in bad faith.
Additional resources
– Cornell Law School, Legal Information Institute — Lis Pendens
– Thomson Reuters Practical Law — Glossary: Lis Pendens
– Investopedia — “Lis Pendens” (overview and examples)
– HOA Management — HOA liens overview (for HOA-related claims)
(These resources provide background and jurisdictional context; check state statutes and local court rules for specifics.)
Concluding summary
A lis pendens is a recorded public notice that a lawsuit affecting ownership or interests in real property is pending. Its primary effect is to warn potential buyers and lenders that the title is disputed and to cloud the marketability of the property. Lis pendens are commonly used in divorce proceedings, foreclosure actions, and contract disputes involving real estate. Because requirements and remedies vary by state, and because filing or failing to remove a lis pendens can have serious financial consequences, parties should obtain counsel early—whether they are filing the notice to protect a claim or defending against a recorded notice to restore clear title. In many cases resolution requires court action, settlement, or a formal recorded release once the dispute is resolved.
– Draft a sample lis pendens template (state-specific templates vary—tell me the state).
– Provide a sample motion to expunge for a particular jurisdiction.
– Walk through a checklist for buyers and sellers in a pending-litigation real estate closing.