If you or your business ends up in a dispute over real estate, it is likely that you will encounter a lis pendens. Lis pendens is Latin for “suit pending,” and it means just that, it is a statutorily governed legal tool that is often used to give notice on a property’s title that a lawsuit relating to that property is pending. A notice of lis pendens is recorded against the disputed property in the recorder of deeds of the town or city where the property is located, and can hinder the ability to sell, develop or mortgage the property as it puts a notice on the title of a pending lawsuit signaling to the public that there may be an issue with title.
The process of filing a notice of lis pendens is different in Rhode Island and Massachusetts. In Rhode Island court approval is not required. Pursuant to Rhode Island General laws §9-4-9, “he notice shall briefly state the names of all the parties, the court wherein filed, the date of filing, and the substance of the bill, petition, declaration or other complaint, rule, order, decree, or judgment, and a description of the real estate thereby affected, so as far as may be necessary to warn any person subsequently dealing with the title to the land.” Furthermore, within seven days of recording the notice of lis pendens you must mail a copy to the parties named in the action. Id. Once recorded, an aggrieved property owner can file a motion to quash the lis pendens to attempt its removal. Critically, however, if a notice of lis pendens is recorded without basis it could expose the recorded to a slander of title action.
In Massachusetts, the process for recording what is called a memorandum of lis pendens is slightly more complex and requires court approval prior to the recording of the memorandum. Under Massachusetts General Laws c. 184 § 15, a party seeking to record a memorandum of lis pendens must have filed a verified complaint seeking the underlying relief as to the property, then under that action, the party may file a motion for the Court to endorse the memorandum if it makes a finding that “the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon.” Once the memorandum is endorsed by the Court, the memorandum along with an affidavit of notice is to be filed with the Recorder of Deeds. An aggrieved party has an immediate right to an appeal of the endorsement of the memorandum and may also file a special motion to dismiss.
In both Massachusetts and Rhode Island, strict compliance with the statutes is required. Non-compliance, as well recording a frivolous notice, could expose you to significant liability. Further, property owners should act swiftly to determine if they have grounds for removal of a lis pendens recorded on their property as such recording could impact the ability to transfer or mortgage the property. For guidance on lis pendens, please contact Attorney Katherine B. Dunn at 401-824-5100 or [email protected].
