Suit Pending! Lis Pendens and What to Do If You Have One
What is a lis pendens?
Lis pendens is latin for “suit pending.” A lis pendens is a written notice that a lawsuit has been filed concerning real estate. It informs potential buyers that there is a lawsuit pending against the property, usually concerning the title to the property or a claimed ownership interest in it. Having a lawsuit tied to the property typically makes the property less attractive to a prospective buyer or a lender.
You may be wondering what it means for a lawsuit to be pending against a property. Essentially, if you were to buy a property with a lis pendens recorded against it, then you would own the property subject to the outcome of that lawsuit. In other words, if you bought the property from the losing party, you may no longer own the property because the winning party won title to it in the lawsuit. Because of this, it is important to do a proper title search before purchasing a property.
A notice of lis pendens will show up in a title search and notify prospective buyers of this extreme condition before buying the property. Therefore, you can see exactly how this has a great impact on the negotiations and even on the seller’s ability to sell the property in the first place.
How do I get a lis pendens on someone’s property?
To file a notice of lis pendens against someone, you must show that you are involved in litigation concerning the title or the right of possession, use, or enjoyment of the property. The notice should contain the court where the litigation is pending, the names of the parties, and a legal description of the real property. In addition, it is good to include the full caption of the case and the case number on the notice of lis pendens. Once you have filed the lawsuit, you should record the notice of lis pendens with the county clerk in the county where the real property is located.
How is a lis pendens removed?
The biggest problem with lis pendens is that you cannot just remove the notice of lis pendens, even if you filed it yourself. This creates problems for real property owners and buyers because the removal process requires getting a certificate of release from the county clerk. GLO can represent you in the removal process to ensure a lis pendens is quickly removed from your property.
A lis pendens will remain in effect until the litigation concerning the property is dismissed by the parties voluntarily—without an order of the court. If the matter is not dismissed voluntarily, the notice will remain in effect until 49 days from the entry of a final order by a court. If a party challenges the lis pendens, the notice will remain in effect until 49 days from the date of the order determining that the real property will not be affected by a judgment on the pending issues in the underlying actions.
When does a lis pendens expire?
If the notice is not released by any of the above, then it will automatically expire after the passage of six years, unless it is extended by a filing of a notice of extension. To release a lis pendens, you must obtain a certificate of release issued by the court clerk and record the certificate with the title company.
What happens when a lis pendens is recorded wrongfully?
Sometimes people will record a lis pendens wrongfully in an attempt to stop or stall a real estate closing. When a lis pendens is recorded wrongfully, the process for removal changes. If a party files a petition with the court, supported by an affidavit, an order to show cause will be issued. A hearing will be set to determine the validity of the recorded lis pendens. If the lis pendens is found to be recorded wrongfully, it will be removed, and the prevailing party will recover attorneys’ fees and court costs.
What should I do if a lis pendens is filed against my property?
A lis pendens recorded against your property can be extremely frustrating. Lis pendens can stop the sale of your property because it binds a potential buyer to the outcome of any pending litigation concerning your property. GLO has extensive experience in helping buyers and sellers in the Denver/Boulder area with their residential real estate purchases, including defending and removing lis pendens. Fill out an interest form today to see if GLO can help you.
GLO has prepared this blog to provide general information on legal issues that may be of interest. This blog does not provide legal advice for any specific situation and this does not create an attorney-client relationship between any reader and GLO or its attorneys. GLO does not guarantee any results. Engagements are subject to specific fee arrangements and signed engagement letters.