Lis Pendens: How Pending Litigation Affects Florida Real Estate Sales

If you’re buying or selling a property in Florida, a routine title search may uncover a document that can instantly halt a transaction: a Notice of Lis Pendens.¹ Translated from Latin as “suit pending,” a lis pendens is one of the most powerful and feared documents in Florida real estate litigation because it serves as a public alert that a specific piece of property is the subject of an ongoing lawsuit.²

A lis pendens is authorized under Florida Statutes § 48.23 and is filed with the Clerk of Court in the county where the property is located.³ Its purpose is to notify the world that anyone who acquires an interest in the property during the litigation (like a new buyer or a lender) will take that interest subject to the outcome of the lawsuit.⁴ This means if the plaintiff wins the case, the new buyer could lose their interest in the property.⁵

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The Immediate Impact on Property Sales

While a lis pendens is not a lien, its practical effect is far more restrictive than most liens. Once recorded, it creates a cloud on the title, making the property virtually impossible to sell or refinance until the notice is removed.⁶

Here’s why a lis pendens stops a transaction in its tracks:

• Title Insurance Denial: Title insurance companies will almost always refuse to issue a title insurance policy for a property with an active lis pendens. Without this insurance, a lender will not provide a mortgage, and most cash buyers will refuse to close due to the risk.⁷
• Preventing “Bona Fide Purchaser” Status: A primary goal of the lis pendens is to strip a subsequent buyer of the status of a “bona fide purchaser” (a buyer who purchases property for value without notice of a defect).⁸ The recorded notice ensures that any new buyer has legal notice of the dispute and takes the property subject to the plaintiff’s ultimate claim.⁹
• Common Lawsuits: This notice is frequently used in lawsuits involving specific performance of a contract (where a buyer is suing to force a seller to close), mortgage foreclosures, mechanic’s lien foreclosures, boundary disputes, or actions to quiet title.¹⁰

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Challenging and Removing a Lis Pendens

For a property owner, having a lis pendens filed against their property can be financially devastating, especially if the filing is improper or malicious.¹¹ Fortunately, Florida law provides mechanisms for challenging or removing the notice.¹²

The court must review the lawsuit to determine if the lis pendens is valid. There are generally two types of lis pendens:¹³

1. Lis Pendens of Right: This is based on a recorded instrument, such as a mortgage or a construction lien.¹⁴ These filings often do not require the party to post a bond.¹⁵
2. “Garden Variety” Lis Pendens: This type is based on an unrecorded document, such as a contract for sale in a specific performance suit.¹⁶ For this type to remain in place, the plaintiff must typically demonstrate a “fair nexus” between the lawsuit and the ownership of the property, and the court will usually require the plaintiff to post a bond. This bond is designed to protect the property owner from any damages they incur (like lost sales or carrying costs) if the lis pendens is later determined to have been improperly filed.¹⁷

The property owner can file a Motion to Discharge or Expunge the lis pendens.¹⁸ If the court finds the underlying lawsuit does not legitimately affect the title or ownership of the property, or if the plaintiff fails to post the required bond, the court will issue an order removing the notice from the public record, thereby clearing the title and allowing a sale to proceed.¹⁹

Due to the serious financial and legal ramifications of a lis pendens on a Florida real estate sale, anyone involved with a property under notice should immediately seek counsel from an experienced real estate litigation attorney.