Lis Pendens, meaning “pending lawsuit” in Latin, is a public notice indicating ongoing litigation involving real property. This document alerts potential buyers, lenders, and interested parties about the legal action affecting the property's ownership or encumbrances. It is intrinsically linked to the associated lawsuit and remains effective during the pendency of that suit or until dissolved. Tex. Prop. Code § 13.004 . Once a judgment is rendered, the Lis Pendens terminates unless an appeal or motion for a new trial is filed, extending its effect. It does not constitute a stand-alone claim and ends with the lawsuit’s resolution.
When a Lis Pendens filed, timing can be critical in safeguarding their party’s interest. Submitting a Lis Pendens prior to filing a lawsuit is not recommended, as it requires an existing lawsuit to be valid. During the preparation stage, it is important to compile all necessary documents and seek legal counsel to arrange the filing of both the lawsuit and the Lis Pendens. Once the lawsuit is initiated, the Lis Pendens should be promptly recorded to notify potential buyers or lenders of the ongoing litigation.
To file a Lis Pendens in Texas, the party initiating the lawsuit must follow procedures outlined in the Texas Property Code . This includes submitting a declarative affidavit to the county clerk’s office where the property is located. The affidavit must generally contain:
Never file a Lis Pendens unless you have filed litigation
claiming an ownership or other legal right in the real property that
is the subject of the Lis Pendens!
In Texas, Lis Pendens is governed by the Texas Property Code and allows filing during actions involving title to real property, establishment of an interest in real property, or enforcement of an encumbrance against real property. Texas Property Code Section 13.004(b) prevents a subsequent purchaser for value from acquiring the property free and clear of the encumbrances mentioned in the Lis Pendens. Any subsequent buyer or lender is deemed to have constructive notice of the pending legal action and its potential outcome. Thus, even if someone purchases the property, they cannot acquire it free of the encumbrances mentioned in the Lis Pendens.
“A lis pendens operates only during the pendency of the suit, and only as to those matters that are involved in the suit. It terminates with the judgment, in the absence of an appeal.” Rosborough v. Cook, 108 Tex. 364, 367, 194 S.W. 131, 132 (1917). “Because the recording of a lis pendens is specifically authorized by statute and has no existence separate and apart from the litigation of which it gives notice . . . the filing of a notice of lis pendens . . . is a part of the ‘judicial proceeding.’” Kropp v. Prather, 526 S.W.2d 283 (Tex.App.—Tyler 1975, writ ref’d n.r.e.). In other words, a lis pendens does not represent a stand-alone claim. It does not survive judgment in the case. Collins v. Tex Mall, L.P., 297 S.W.3d 409, 419 (Tex.App.—Fort Worth 2009, no pet.)
The content of a Lis Pendens notice is crucial. In many states, these notices are regulated by statutes, requiring strict adherence to specific requirements. Failing to meet these statutory demands can render the notice invalid. Even in jurisdictions where lis pendens is governed by common law, the adequacy of the notice is often a key issue in disputes.
Example : If a Lis Pendens notice lacks essential details mandated by state law, such as a proper description of the property or the legal basis of the claim, it can be challenged and potentially invalidated.
Lis Pendens notices serve as powerful legal tools. By recording a Lis Pendens in real property records, it notifies others of a pending dispute regarding the property. This can affect any subsequent interests or purchases.
Example : A prospective purchaser involved in a dispute over a letter of intent to acquire real estate can strengthen their claim by recording a Lis Pendens, assuming they have a legitimate and enforceable right to the property. Similarly, a developer can use Lis Pendens to protect their interests in a disputed real estate development contract.
Using Lis Pendens notices improperly can lead to significant liabilities. Filing a Lis Pendens prematurely or for an improper purpose can result in slander of title claims. This can expose the filing party to substantial legal consequences, including liability for attorneys' fees.
Example : Overzealously filing a Lis Pendens without a valid underlying claim can lead to a lawsuit for slander of title, potentially costing the filer both financially and legally.
Lis pendens laws and practices vary widely between jurisdictions. Misunderstanding these local differences can lead to severe repercussions.
Example : According to Tex. Prop. Code § 13.004 , this legal notice can also be expunged or canceled by a court if it was fraudulently filed, as stated in Tex. Prop. Code §§ 12.0071; 12.008 . Additionally, courts have the authority to cancel a lis pendens if it was filed by individuals seeking a collateral interest rather than a direct interest in the real property, as demonstrated in the case In re Collins, 172 S.W.3d 287, 295 (Tex. App.—Fort Worth 2005). In a recent Texas case, an out-of-state attorney filed a Lis Pendens without understanding Texas-specific requirements. The notice was dismissed due to technical deficiencies and irrelevance to the real estate in question.
Understanding Lis Pendens is essential for anyone involved in real estate transactions or legal disputes related to property in Texas. This legal notice plays a critical role by providing constructive notice of ongoing litigation, ensuring all parties are aware of the pending legal action and its potential impact on the property in question. Whether you are a buyer, seller, or lender, being informed about a Lis Pendens can significantly influence your decisions and actions. The presence of a Lis Pendens can affect the marketability of the property, potentially delaying or complicating transactions.To maximize the effectiveness and minimize the risks associated with Lis Pendens notices:
Understand the specific statutory or common law requirements for filing a Lis Pendens in your Texas County.
Ensure all details of the Lis Pendens and the notice it provides are correct and complete.
Only use Lis Pendens when there is a legitimate and enforceable interest in the property. Never file a Lis Pendens if you do not have a present right to land interest.
Always consult with local legal Lis Pendens experts to navigate all legal concerns to avoid becoming liable for filing a wrongful Lis Pendens.
You remove a Lis Pendens by filing a Motion to Expunge Lis Pendens in the county where the Lis Pendens was filed. A Motion to Expunge Lis Pendens will ask the court to remove the Lis Pendens and will be supported by sufficient evidence justifying its removal:
If someone has filed a Lis Pendens notice (which alerts others that there is a pending lawsuit involving a property), any party involved in the lawsuit can:
Upon filing, the Court Court will do the following:
Once a Motion to Expunge Lis Pendens is granted, the Lis Pendens notice and any related information no longer serve as a warning about the lawsuit or property, do not require anyone to investigate the property further, and do not impact the validity of a property sale. As a result, the property can be sold or mortgaged without being affected by the claims mentioned in the notice.
Given the complexities and legal implications associated with a Lis Pendens, it is advisable to seek legal counsel before filing a Lis Pendens . An experienced attorney can provide valuable guidance, help navigate the legal intricacies, and ensure that your interests are adequately protected throughout the process. The attorneys at Wilson Whitaker Rynell are well-versed in handling real estate litigation and can assist you in the process of filing a lawsuit that requires a Lis Pendens. With their expertise, you can confidently address any legal challenges and protect your property rights effectively.