Lis Pendens in Massachusetts

Obtaining a lis pendens, which directly translates to “suit pending,” is a legal procedure that involves a plaintiff seeking court approval to record a memorandum at the Registry of Deeds that effectively puts the world on notice of a pending suit involving title, use, or occupation of the real estate. The procedure is governed by G.L. c. 184, § 15, and by recording a memorandum of lis pendens, the plaintiff clouds the title to the real estate, making conveyance unlikely. Massachusetts law generally requires strict compliance with the procedures stated in the statute to obtain and defend a memorandum of lis pendens.

Commencing the Underlying Action and Motioning for Allowance of Lis Pendens

A plaintiff must obtain court approval before recording a notice of lis pendens at the registry. The first step in obtaining court approval is commencing the underlying lawsuit with a verified complaint that contains all relevant facts and states a claim that affects title to real estate or the use and occupation thereof or the buildings thereon. The complaint must name as defendants all owners of record of the real estate and anyone occupying the real estate pursuant to a written lease. It must be signed by the plaintiff under the penalties of perjury, certifying that he or she has read the complaint, that the facts stated therein are true, and that no material facts have been omitted therefrom. This certification provides the judge with information necessary to determine whether a lis pendens is appropriate.

The plaintiff may commence the action, serve a copy of the verified complaint and court summons on the defendant, and then motion for approval of a lis pendens, or he or she may motion for approval of a lis pendens contemporaneous with commencing the action. Either way, the plaintiff should provide service or notice of both the lawsuit and the motion to the defendant, pursuant to the rules. There are two circumstances in which a court may allow a lis pendens without prior notice of the lawsuit and motion provided by the plaintiff to the defendant. This is referred to as an ex parte motion and will be discussed after covering the usual course of procedure.

After the lawsuit is properly commenced and the defendant is served, the court hears arguments on the motion for approval of the lis pendens. In determining whether to endorse a memorandum of lis pendens, a judge should be concerned about the scope of the claimed interest in the real estate, as alleged in the verified complaint, to assure that no more land is subject to the notice of lis pendens than the subject matter of the action asserts an interest in. Once allowed by the court, the plaintiff must record the memorandum of lis pendens with the proper registry of deeds.

The statute requires the memorandum to include the names of the parties to the court proceeding, the name of the court where the action is pending, the date the action was commenced, the name of the town where the real estate is located, and a description of the real estate sufficiently accurate for identification. This identification requirement may be satisfied by a reference to the appropriate book and page at the Registry of Deeds where the defendant’s deed is recorded.

Recording a Memorandum of Lis Pendens

Recording the memorandum of lis pendens provides protection against a possible sale of the real estate to a bona fide purchaser during the resolution of the underlying dispute. It serves as a tool for a plaintiff who is litigating an issue concerning real estate to ensure the availability of the real estate to effectuate the court judgment. Any judgment from the court will bind all persons, and the defendant cannot convey clear title to the real estate during the pendency of the lawsuit.

The plaintiff puts potential purchasers of the real estate on notice of the suit by recording the lis pendens, but recording the lis pendens does not legally prevent conveyance of the real estate. It provides information to prospective purchasers that there is a legal dispute that concerns the real estate, making the purchaser bound by the judgment in the underlying lawsuit, even if the purchaser is not a party to the lawsuit. If, despite the lis pendens, a conveyance is made, the purchaser takes the real estate with the knowledge that a court may declare that the grantor did not have the power to convey it.

Consequences of Recording a Lis Pendens

While a memorandum of lis pendens does not directly restrict the conveyance of the land, it may deter potential buyers from purchasing the real estate, especially if there is a pending lawsuit questioning the owner’s title to the land. As a result, few buyers would be willing to close a transaction where a pending lawsuit casts doubt on the seller’s ownership of or clear title to the land.

A lis pendens is not available in a suit seeking only money damages since a claim for damages does not affect title to real estate. Some examples of claims where a lis pendens may be used are actions seeking equitable relief, such as specific performance of a contract for the purchase and sale of real estate, rescission of a conveyance, and reformation of a deed. However, a lis pendens procedure is not available in connection with a proceeding arising under a statute, ordinance, or by-law regulating land use, including without limitation one related to zoning or wetlands regulation.

Obtaining Lis Pendens on an Ex Parte Basis

A party may seek ex parte permission to record a memorandum of lis pendens by motion. The judge must make an additional finding that either (1) the defendant is not then subject to the jurisdiction of the court in that action, or (2) there is a clear danger that the defendant, if notified in advance of the endorsement of the memorandum, will convey, encumber, damage, or destroy the real estate or the improvements thereon. The burden falls on the plaintiff to present sufficient information to the court to make such an additional finding. To satisfy this requirement, the plaintiff should include an affidavit setting forth facts that would allow the court to make a finding consistent with (1) or (2) above. Alternatively, such matters may be included in the verified complaint that is required.

A party who is aggrieved by a court’s ruling denying approval of an ex parte motion for lis pendens may appeal the ruling to a single justice of the Massachusetts Appeals Court or to a panel of the Appeals Court.

Attacking the Lis Pendens and Other Relief

Massachusetts law provides avenues for attacking court approval of a lis pendens memorandum and the underlying action. These include moving to dissolve the memorandum if it is approved ex parte, filing a special motion to dismiss the underlying action if the complaint giving rise to the memorandum of lis pendens is frivolous, or moving to vacate the memorandum of lis pendens if the underlying action is resolved.

Once the lis pendens has been properly recorded, all parties are on notice of the underlying litigation involving the real estate. Even if the underlying claim in the action does not result in a judgment, the lis pendens can still have a binding effect.

The court has the discretion to refuse to endorse the memorandum of lis pendens and instead grant temporary equitable relief to preserve the status quo. In such cases, the court may grant a restraining order to prevent the transfer of title or encumbrance of the real estate.

Conclusion

A lis pendens is an essential tool that provides notice of pending litigation involving a claim that affects title to real estate. It allows for a fair and transparent legal process by ensuring that potential buyers are aware of any pending litigation and the potential implications for title to the real estate. The plaintiff bears the burden of providing sufficient evidence for the court to approve the memorandum of lis pendens, and the court has discretion to refuse to endorse the memorandum in certain circumstances.

Whether you are contemplating asserting a claim that affects title to real estate or defending against one, it is imperative to seek counsel to ensure your legal rights as well as the steps to assert and protect them are effected properly.