Have you received notice of a lis pendens, and are you overwhelmed by the unfamiliar legal real estate jargon? Please don’t fret; we’re here to help! Simply put, a lis pendens is a notice of a pending lawsuit.
Understanding legal real estate matters can be tricky, but it doesn’t have to be. Leading Edge Title of Central Florida has helped countless clients navigate the confusing real estate legal process. We’ve written the ultimate guide to understanding the lis pendens on Florida real estate and real property. Below we’ve outlined everything you’ll need to know to navigate the lis pendens process in Florida.
What Is a Lis Pendens?
Lis pendens is a legal term to describe a notice of pending litigation against real estate or real property. When translated directly from the original Latin, lis pendens means “suit pending.” In Florida, lis pendens “operates as a cloud on a title” and is used to give public notice that a person has filed a lawsuit involving property rights. A lis pendens is typically filed with the office of public records of the county in which the real estate is located and can prevent the homeowner, the defendant, from selling or refinancing the property until the lis pendens is removed.
This legal document can protect the rights of the plaintiff, the person filing suit, by preventing the defendant from selling or transferring any interest in the property until the lawsuit is resolved. A lis pendens not only alerts the public and potential buyers that the property is under a pending case, but it can also be used to pressure debtors, often the defendants, to pay off their debts. By understanding lis pendens in Florida and how it works, you can protect your rights when filing suit over real estate or other property disputes.
What Are the Two Types of Lis Pendens in Florida?
There are two types of lis pendens in Florida real estate. The first is the lis pendens of right, and the second is the garden variety of lis pendens. We’ve detailed the two distinct types of lis pendens below.
Lis Pendens of Right
A lis pendens of right is the most common lis pendens, and it typically involves the recorded lien or another recorded instrument, a mortgage, for example. It serves as a security for a promissory note, a debt instrument containing a written promise between two parties made in the interest of settling a debt. The type of lis pendens does not require a bond.
Garden Variety Lis Pendens
A garden variety lis pendens is granted at a judge’s discretion when there is a lack of a recorded instrument or lien. For example, a person agrees via a written agreement to lend a friend money to buy property. However, when the friend, the purchaser, files for the deed, they omit the lender from it. The lender may see it necessary to sue for a constructive trust and ask the judge to grant a lis pendens on the property. The lender must then post a bond in the amount decided by the judge to maintain the garden variety lis pendens.
Can I Buy a Property With a Lis Pendens?
The titleholder can sell a property and transfer the deed to someone else while subject to a lis pendens. However, most title companies will not provide insurance for homes with a lis pendens, and closing agents may close with the lien being bonded. While a lis pendens does not prevent the sale, the average buyer would likely not make the purchase. If a buyer decides to purchase a property with a lis pendens, they will likely inherit the lawsuit. The lis pendens may also preclude them from obtaining a clean title and becoming bona fide purchasers.
How Long Is a Lis Pendens Placed on a Property?
Typically, a lis pendens will give the property owner 30 days to resolve the issue without the risk of losing their property. After one year, the lis pendens will expire if no action has been taken.
How to Remove a Lis Pendens in the State of Florida?
When a lis pendens is filed, a statutory notice is noted in the official county records where the property is located. In effect, this notifies all potential claimants on the property about the pending lawsuit and can prevent the titleholder from selling or refinancing the property. To remove a lis pendens, the property owner must file a motion to dissolve the lis pendens with the county clerk. To expunge the lis pendens, one of the following must be true:
1. A Lis Pendens Is Deemed Null and Void
A notice of lis pendens can be expunged when null and void. A lis pendens may be deemed null and void if it is filed without being served to the property owner or if the lis pendens has been misused. The defendant can file a notice of lis pendens null and void if it s found to have been filed improperly.
2. The Plaintiff Fails to Provide Validity of the Claim
The claimant or plaintiff who files a lis pendens without the property documentation to support the claim may see the removal of the lis pendens. In a lis pendens of right, the plaintiff may fail to produce the recorded instrument. In a garden variety lis pendens, if there is insufficient evidence to support the request of a lis pendens being placed on the property, it will be deemed invalid.
3. The Plaintiff Fails to File an Undertaking
The person filing the lis pendens claim is responsible for filing an undertaking. An undertaking is a document that lists the promises of the lis pendens, such as providing the defendant with the correct papers and appearing in court for scheduled hearings. An expungement notice of the lis pendens may be filed if the plaintiff fails to uphold their side of the process.
Final Thoughts
A lis pendens is a formal notice that a legal proceeding is underway on a specific piece of property or real estate. In Florida, there are two commonly used types of lis pendens, lis pendens of right and the garden variety lis pendens. The former is used by a claimant when the case has a recorded instrument, such as a mortgage. The garden variety lis pendens is used by those with less formal written agreements, must be granted by a judge, and requires a bond. There are three common ways to remove a lis pendens in Florida. A lis pendens will be removed if a notice of lis pendens null and void is filed or if the claimant fails to validate the claim or file an undertaking.
If you are considering buying or selling a property, it is important to check for any liens or pending lawsuits that may affect the title. To ensure a smooth and successful real estate transaction, contact Leading Edge Title of Central Florida. Our experienced team of professionals can assist you with all your title needs, including researching and clearing any liens or pending lawsuits. Contact us today to learn more about how we can help you!
