Lis Pendens - Explained
What is a Lis Pendens?
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What is a Lis Pendens?
A lis pendens is a Latin phrase when interpreted means litigation pending. It is documented burden that implies litigation is pending as it relates to an estate or interest in specific property. It is registered, so the seller doesnt transfer the property to a third party. So that the buyer gets jilted, and the seller avoids the buyers claim.
How Does a Lis Pendens Work?
A lis pendens is a recorded notification, which in U.S. law, indicates a lawsuit has been entered regarding real estate, which either involves a claimed ownership interest in the property or the title. Generally, the note gets filed in the land records office of the county. If court proceedings have an impact on a partys interest in lands, the countering party can register a lis pendens. Judicial oversight is not necessary for registering. It is solely institutional or administrative. After registration, the sale of the property to a third party who unfailingly needs a fresh title before the sale closure. Until the lis pendens is removed, any attempts by either the receiver or chargeholder to dispose of the property is completely impeded. When an involuntary lien gets imposed on property it is called a judgment lien. This applies to real estate. A lien is a claim or right on the property belonging to another party. When someone wins a lawsuit for monetary damages and has not been compensated yet, a judgment lien is created. To protect the interests of the seller, in all fairness, a bond has to be posted. With the lis pendens in effect, the owner most times is not permitted to mortgage or sell the property.
- What are the common types of security interest in real property (land)?
- What is a mortgage?
- How does a security interest protect the mortgage holder?
- Lis Pendens
- Deficiency Judgment
- What is a Deed of Trust or Security Deed?
- What is a Land Sale Contract?
Academic Research on Lis Pendens
Lis pendens and forum non conveniens at the Hague Conference, Stuckelberg, M. (2000). Brook. J. Int'l L., 26, 949. This article begins by describing a scenario where two travelers, domiciled in Germany, take a trip to Arizona. One of the travelers mistakenly closes the door on another travelers hand. The question is can the injured party sue the negligent traveler. The author points out how there is a difference between common law and civil law countries. In civil law countries, the court would look at the statute and decide if the place of the wrongful act is a ground for arbitration. If so, then the court has to continue with the case. In a majority of common law countries, the court has discretion. The author then defines forum non conveniens as the decision doctrine in which a court does not choose to exercise jurisdiction and considers the forum unsuitable for the case or that another judicial system is more appropriate to handle the case. The use and limits of Res Judicata and Lis Pendens as procedural tools to avoid conflicting dispute settlement outcomes, Reinisch, A. (2004). The Law and Practice of International Courts and Tribunals, 3(1), 37-77. The development of new international tribunals and courts has seen increased activities because parties more often decide to go into arbitral and judicial dispute settlement, which has been accepted as an indication that the legal character of international law is strengthening. Lis Pendens, Res Judicata and the issue of parallel judicial proceedings, Soderlund, C. (2005). J. Int'l Arb., 22, 301. Res judicata and lis pendens are essential concepts of procedural law. The two principles may seem straightforward and clear-cut superficially. It may appear as though they are not exposed to the scholastic argument. However, if a more accurate look is made at the two concepts and how they apply to real life situations, they dont seem to be as self-evident. When there is the interplay between arbitral awards and court judgments and the overseeing functions of the court designated to supervise the specific arbitration, the lis pendens, and res judicata begin to not seem so cut-dry. The Principle of Lis Pendens in International Arbitration: The Swiss Decision in Fomento v. Colon, Oetiker, C. (2014). Arbitration International, 18(2), 137-145. The Swiss Federal Supreme Court ruled in 2001 that lis pendens is applicable in proceedings under the governance of the Swiss Arbitration Act. This judgment is from the highest Swiss Court and answers many quarrelsome questions adamantly under the law, but it brings up new concerns also. An Analysis of the Evolution of Oklahoma Real Property Law Relating to Lis Pendens and Judgment Liens, Astle, D. L. (1979). Okla. L. Rev., 32, 812. Judgment liens and lis pendens have been significantly changed in Oklahoma real property law throughout history, including the recent past. Oklahoma practitioners have misunderstanding and uncertainty about the many amendments made recently. This paper examines the total evolvement of law in this area specifically the current changes. ILA Final Report on Lis Pendens and Arbitration, De Ly, F., & Sheppard, A. (2009). Arbitration International, 25(1), 3-34. After a theoretic introduction, this report begins a summary of lis pendens from the lens of public international law and domestic law. Lis pendens is then discussed from the lens of international commercial arbitration. The report ends with the Committees recommendations and conclusion. Lis Pendens, Laurence, R. (1979). NDL Rev., 56, 327. In general, the parties presenting a case before the court are obligated to the verdict given in trial. Res judicata is a rule for parties not represented in court and lis pendens is a precept extending that rule in the common-law and statutory scheme. Lis pendens, in theory, puts sellers of property and potential buyers on notice and its that legal notice that bounds them to the judgment passed down. This paper aims to analyze the details of the lis pendens theory. Texas Statutory Notice of Lis Pendens: A Deprivation of Property Interest Without Due Process, Janzen, H. A. (1987). . Mary's LJ, 19, 377. This article discusses the history of lis pendens. The author explains the common-law and statutory lis pendens in Texas and in other jurisdictions. The constitutional issues that encompass lis pendens are examined and a proposed statute for Texas is presented. Lis Pendens Expungement-A Revisionist View, Zebrowski, J. (1988). LA Law., 11, 52. A lis pendens can have a gravely negative impact on a real property owner. It is a practical notice that there is a pending lawsuit coming against the title to real property. The removal of lis pendens is significant in real property law but the author believes that the law regarding the removal of lis pendens is often misapplied. The error is in the failing of an attorney to go after evaluation of the factual merits which support the lis pendens. The author references a monumental case of Malcolm vs. Los Angeles Superior Court, in which the motion for removal of the lis pendens was not allowed. The Propriety of a Lis Pendens in Constructive Trust Cases, Roberts, F. Y. (2008). Seton Hall L. Rev., 38, 213. A plaintiff can get the title to real property from a defendent who had unfairly gotten the title through a conventional fix known as a constructive trust. To preserve a claim, the plaintiff must record a lis pendens to give notice that there has been action taken or a buyer of the property could obtain the real property without the interest of the plaintiff. A lis pendens is the means to ensure any party that gets interested in the property afterward also takes that interest contingent on the judgment of the case. In cases when the plaintiffs claim is established on tracing funds and when the plaintiff also has a claim for damages, the ability to record a lis pendens is limited by some courts. This article analyzes the constructive trust and the ways that it is used to reacquire a propertys title. The Applicability of Res Judicata and Lis Pendens in World Trade Organization Dispute Settlement, Nguyen, S. T. (2013). Bond L. Rev., 25, 123. This article examines how the principles lis pendens and res judicata apply to the disputes of the World Trade Organization (WTO) regarding a conflict in the area of authority between the ways for settling disputes by the WTO and Regional Trade Agreements (RTA). For all practical purposes, there is no way to definitively confirm if WTO law permits the use of non-WTO norms such as lis pendens and res judicata in WTO arguments. This paper establishes criteria to be used by WTO courts in assessing the usefulness of lis pendens and res judicata and then evaluates if they can be applied to settle disputes between WTO and RTA. The International Law Association (ILA) International Commercial Arbitration Committee Reports on Lis Pendens and Res Judicata, De Ly, F., & Sheppard, A. (2009). Arbitration International, 25(1), 1-2. At the 72nd biennial conference of the International Law Association, the International Commercial Arbitration Committee reported four years work comprising the outcomes from a number of meetings discussing res judicata and lis pendens with application appropriate for international arbitration as opposed to domestic statutes.