Lis pendens is Latin for “suit pending”.  This fancy sounding legal procedure is used when there is litigation pending that affects real property.  In obtaining a lis pendens, one gives notice to all interested parties (through the registry of deeds) of such litigation, essentially putting a cloud on the property, like a lien.  A lis pendens on title of a property can make it virtually impossible to sell.

Getting a Lis Pendens

According to M.G.L. Chapter 184, §15, to obtain a lis pendens in Massachusetts, one files a memorandum with the court that outlines the following:

  1. Names of the parties;
  2. The court where the action is pending and the date it commenced; and
  3. The town/city where the affected property lies and an accurate description of the property.

A request for a lis pendens is made via a verified complaint, whereby the claimant is certifying under the penalties of perjury all of the facts contained therein are true AND that no material facts have been omitted.  This second portion is very important because if any material facts have been omitted, even adverse ones, there is potential for it to be denied or later dismissed.  Furthermore, the subject matter of the pending litigation must “constitute a claim of right to title to real property or the use and occupation thereof or the building thereon”.[1]  This means that one cannot obtain a lis pendens due to an ordinance or by-law regulating land, like a zoning or conservation issue.

Additionally, when filing a request for a lis pendens, it can be obtained through a noticed hearing, where the defendant has an opportunity to be heard or via ex parte.  If done via ex parte, the claimant, in addition to the above, needs to prove to the court that the defendant is not currently subject to the jurisdiction of the court AND that is there is eminent danger of the defendant destroying, encumbering, and/or damaging the property had they been given proper advance notice.

Once the lis pendens is approved by the court, it gets recorded with the appropriate registry of deeds.

 Removing a Lis Pendens

If you happen to be on the receiving end of a lis pendens and believe that the supporting memorandum is frivolous, you can apply for its removal by filing a special motion to dismiss.  This can either be heard at the time of the claimant’s original hearing or, if the lis pendends was issued via ex parte, then at a subsequent hearing.  To receive the dismissal, you must show the court that the claim is frivolous because there is 1) no reasonable factual support; 2) no basis in law; or 3) a valid legal defense (like fraud).  If you win the special motion to dismiss, the court can award you reasonable attorney’s fees and costs.

As the claimant, you can also dissolve the lis pendens by recording at the registry of deeds an acknowledged notice of voluntary dismissal, thereby removing the dark cloud on title.

Whether you are looking to be on the giving end or find yourself on the receiving end of a lis pendens, the attorneys in PK Boston’s real estate and litigation departments can assist you.

[1] M.G.L. Chp. 184, §15