The legal term Lis Pendens relates to real estate law and describes pending litigation that occurs when a person, usually a buyer, claims a right or title to real property or use and occupation of a property. When a buyer files a lis pendens claim, it clouds the title, serving as a notice to interested parties that title to the property is in litigation thus hindering the property owner’s sale’s efforts.

In most situations, a buyer obtains a lis pendens to claim a contractual right to buy property. For example, this could happen when a seller accepts an office to purchase but the parties fail to negotiate a purchase and sale agreement. It also can be appropriate where a party wants to maintain rights to and easement or tenancy.

In Massachusetts, an effectual filing for the lis pendens must name the parties to the proceeding, the court where it is pending, the commencement date and provide a description and location that makes the property clearly identifiable in the relevant county or district registry of deeds records. To guard against dismissal by the court, the plaintiff filing the lis pendens must certify that he has included all the facts material to the complaint. If the claimant has established an appropriate basis for his claim, a judge presiding in the court where the action is pending will endorse the lis pendens.

In 2003, the legislature amended the lis pendens’ law after hearing complaints that litigants were bringing frivolous suits. Current law requires that claimants requesting ex parte relief show a clear risk that the seller, if given advance notification, will transfer title, encumber, damage or destroy the property.

Additionally, under the amended statute, sellers can seek dismissal of the lis pedens claim in an expedited hearing if they believe the claim was frivolous. The court grants a motion to dismiss if it finds a claim frivolous because there is no factual support, there is no arguable basis in law or the claim is subject to dismissal based on a valid legal defense, for example, the statute of frauds. If the court allows a motion to dismiss, it would award attorneys’ fees and costs to the seller.

A lis pendens is applicable when a suit seeks relief directly relating real estate such as cancellation of deeds and establishment of title by adverse possession. Lis pendens proceedings encompass suits seeking relief pertaining to physical conditions on real estate such as requesting that an adjacent property owner make corrections to prevent unlawful runoff on the plaintiff’s property. Lis pendens is not appropriate for a proceeding occurring under a statute, ordinance or by-law regulating land use such as zoning or wetlands regulation since it does not affect title to real property.