If you are buying or selling a home in the Sunshine State, a routine title search can reveal a major roadblock. Finding a Lis Pendens Florida filing often brings a transaction to a screeching halt.
Translated from Latin as “suit pending,” this notice is a powerful tool in real estate litigation. It serves as a public alert. It tells the world that a specific property is the subject of an active lawsuit. Whether you are a buyer hoping to close or a seller trying to move on, understanding this document is critical to protecting your investment.
What is a Lis Pendens?
A lis pendens is authorized under Florida Statutes § 48.23. It is filed with the Clerk of Court in the county where the property sits. Its primary purpose is to notify the world. Anyone who acquires an interest in the property during the litigation takes that interest subject to the lawsuit’s outcome.
In simple terms: If you buy a property with a lis pendens on it, and the plaintiff wins their case, you could lose your ownership stake.
Why a Pending Lawsuit Stops a Sale
While a lis pendens is technically not a “lien” (like a tax lien or mortgage), its practical effect is often more restrictive. Once recorded, it creates a “cloud on the title.” This makes the property virtually impossible to sell or refinance.
Here is exactly why this filing kills a real estate transaction:
- Title Insurance Denial: Title insurance companies will almost always refuse to issue a policy for a property with an active lis pendens. Without title insurance, a lender will not provide a mortgage. Most cash buyers will refuse to close due to the unacceptable risk.
- Preventing “Bona Fide Purchaser” Status: The goal of a lis pendens is to strip a buyer of “bona fide purchaser” status. This status usually protects a buyer who purchases property without notice of a defect. The recorded notice ensures that any new buyer has legal notice of the dispute. They take the property exactly as the original defendant held it.
Common Lawsuits Involved
You will typically see a lis pendens filed in cases involving:
- Specific performance (suing to force a seller to complete a sale)
- Mortgage foreclosures
- Mechanic’s lien foreclosures
- Boundary disputes
- Actions to “quiet title” (resolving ownership disputes)
How to Fight a Lis Pendens in Florida
For a property owner, having this notice filed against their home can be financially devastating. This is especially true if the filing is frivolous or malicious. Fortunately, Florida law provides specific methods to challenge or “expunge” (remove) the notice.
To fight back, a property owner must file a Motion to Discharge or Expunge. The court will review the underlying lawsuit to determine if the notice is valid. Florida courts generally view these filings in two categories:
- Lis Pendens of Right: This is based on a recorded instrument, such as a mortgage or a construction lien. Because the claim is already part of the public record, these filings are generally valid and often do not require the plaintiff to post a bond.
- “Garden Variety” Lis Pendens: This is based on an unrecorded document, such as a contract for sale in a specific performance suit. For this type to remain in place, the plaintiff must: Demonstrate a “fair nexus” (a legitimate connection) between the lawsuit and the property. Post a bond. The court will usually require the plaintiff to post a bond to protect the property owner. If the lis pendens is later determined to be improper, the bond covers the owner’s damages (like lost sales, carrying costs, or legal fees).
If the court finds the lawsuit does not legitimately affect the title to the property, or if the plaintiff fails to post the required bond, the judge will issue an order expunging the lis pendens. This clears the title and allows the sale to proceed.
Key Takeaway
A Lis Pendens Florida filing is a serious legal tool that effectively handcuffs a property owner’s ability to sell or refinance. Due to the severe financial and legal ramifications, anyone involved with a property under this notice should seek counsel from an experienced real estate litigation attorney immediately. Whether you need to enforce a contract or remove a wrongful cloud on your title, time is of the essence.
Please contact Travis Walker Law to discuss your case.
