How Do You Know if Lis Pendens Has Been Discharged Against Your Property
A lis pendens is a common tool used in Florida to put third parties on notice of a pending lawsuit confronting real estate. If filed properly, a lis pendens protects the plaintiff in a lawsuit from any intervening liens on the holding filed after the lis pendens. All the same, property owners may non be able to sell, obtain financing, or obtain championship insurance until the lis pendens is removed. Whether a party is filing a lis pendens, or a lis pendens is filed against their belongings, information technology is important to know the do's and don'ts of lis pendens in Florida.
What is a Lis Pendens and Why is it Important?
The term "lis pendens" translates to "pending lawsuit," just is divers by Florida courts every bit "the jurisdiction, power, or command which courts acquire over property involved in a awaiting suit." Med. Facilities Dev., Inc. v. Little Arch Creep Props., Inc., 675 And then. 2d 915, 917 (Fla. 1996). A lis pendens is important because it provides find to tertiary parties that a lawsuit has been filed concerning title to or some interest in the holding. A lis pendens also protects a plaintiff from intervening liens that may impair or extinguish his or her claimed property rights. Chiusolo five. Kennedy, 614 So. 2d 491, 492 (Fla. 1993) ("The notice is . . . a cloud on the title that creates a priority for the political party that filed the lis pendens if that party prevails in the pending litigation.).
For a pending lawsuit against real property to operate equally a lis pendens, a notice of lis pendens must be recorded in the official records in the county where the property is located. Fla. Stat. § 48.23(ane)(a). The notice must include: the parties' names; the date of the establishment of the lawsuit, the date of the clerk'south electronic receipt or the example number of the lawsuit; the name of the courtroom in which the lawsuit is pending; a description of the belongings; and a statement of the relief sought. Fla. Stat. § 48.23(one)(c)(ane).
What Effect Does a Lis Pendens Have on Property?
Under Florida law, a lis pendens functions equally "a harsh and oppressive remedy" that "operates as a cloud on the title and prevents an owner from selling or dealing with it." Suarez v. KMD Constr., Ins., 965 So. second 184, 187-88 (Fla. 5th DCA 2007). Therefore, if a lis pendens is filed on the holding, prospective buyers may exist deterred from purchasing the holding, mortgage lenders may be deterred from providing financing, or title insurance companies may not provide championship insurance. Therefore, a lis pendens must accept a proper basis, and in that location are risks to a party that files a lis pendens against property without a proper ground.
When Can a Lis Pendens be Properly Filed Confronting Holding in Florida Litigation?
In Florida, a lis pendens is commonly filed when a political party is foreclosing on a mortgage, foreclosing on a construction lien, quieting championship, seeking specific performance, or whatever action involving title to or interest in holding. To properly file a lis pendens in connection with such litigation, the plaintiff must prove in its pending pleading that the lawsuit is "founded on a duly recorded instrument," which is a document such every bit a deed or mortgage recorded in the public records where the property is located. Fla. Stat. § 48.23(3). If the lis pendens is founded on a duly recorded musical instrument, the filing political party has the absolute correct to tape a lis pendens and no lis pendens bail volition be required. However, if the pending lawsuit is not founded on a duly recorded instrument, the plaintiff must show that there is fair connection, or off-white nexus, between the apparent legal or equitable buying of the holding and the dispute at issue in the lawsuit. Conseco Servs., LLC five. Cuneo, 904 So. 2d 438, 439 (Fla. 2d DCA 2005) ("A courtroom must dissolve a lis pendens that is based on an unrecorded document unless the proponent establish[es] a fair nexus between the credible legal or equitable ownership of the property and the dispute embodied in the lawsuit.").
When Can a Lis Pendens be Challenged and How?
A lis pendens tin can exist challenged if information technology is non "founded on a duly recorded instrument." When a pending pleading does not prove that an activeness is "founded on a duly recorded musical instrument," a courtroom may command and discharge the recorded notice of lis pendens. Fla. Stat. § 48.23(three). Florida case law makes "clear that the statutory language 'founded on a duly recorded instrument' imposes the strict requirement that the lawsuit must be based on the terms contained in the recorded document itself." Suarez, 965 And so. 2d at 187. A lis pendens will not exist determined to be "founded on a duly recorded instrument," for example, if the lawsuit was founded on fraud, or based on a non-recorded document. Daugherty v. Daugherty, 509 So. 2d 1289, 1290 (Fla. 1st DCA 1987). Therefore, if the lawsuit is non based on a duly recorded instrument, then the court has the discretionary power to control and belch the lis pendens.
However, a court should not deliquesce a lis pendens that is based on an unrecorded certificate if the plaintiff can "establish a fair nexus betwixt the apparent legal or equitable ownership of the belongings and the dispute embodied in the lawsuit." Chiusolo, 614 So. 2d at 492. The plaintiff must establish a "good religion, feasible claim." Nu-Vision, LLC v. Corporate Convenience, Inc., 965 So. 2d 232, 234 (Fla. 5th DCA 2007). If the plaintiff "tin exist afforded complete relief on a merits without reference to the title to the real property, a lis pendens cannot exist maintained." Blueish Star Palms, LLC five. LED Trust, LLC, 128 And then. 3d 36, 38 (Fla. 3d DCA 2012). Withal, if a plaintiff tin establish a good faith, feasible claim that would affect title to the property, the lis pendens should not be discharged.
When is a Lis Pendens Bond Required?
Even if a plaintiff can establish that a lis pendens that is non based on duly recorded musical instrument should not be discharged, the court may, in its discretion, require the plaintiff in the pending lawsuit to post a lis pendens bond with the courtroom. A lis pendens bond, which may in the course of cash or a surety bond, is designed to protect the property owner from amercement that may result from the lis pendens, if the lis pendens is later found to be unjustified. DeGuzman v. Balsini, 930 So. 2d 752, 754 (Fla. fifth DCA 2006) ("If the lis pendens is not based on a duly recorded instrument affecting the title to the belongings, the court, in its discretion, may require that the party filing the lis pendens postal service a bond when the property owner shows that damages volition likely result in the upshot the notice of lis pendens is unjustified.").
In other words, the purpose of such a bail is "as a vehicle for protecting the property holders only every bit the lis pendens protects the plaintiff and third parties." S & T Builders v. Earth Backdrop, Inc., 944 So. 2d 302, 304 (Fla. 2006) (holding that Department 48.23 of the Florida Statutes authorizes a trial courtroom to require the posting of a bail in order to maintain a lis pendens). The amercement a belongings possessor can recover for an improperly filed lis pendens are generally measured the "divergence between the off-white marketplace value at the time of the filing of the lis pendens and the fair market value at [the] time of its termination, plus any consequential damages, including attorney's fees." FCD Dev., LLC v. South. Fla. Sports Comm., Inc., 37 So. 3d 905, 909 (Fla. quaternary DCA 2010). Depending on the nature of the dispute, the amount of the lis pendens bond required could be substantial, and easily accomplish in the hundreds of thousands of dollars.
The requirement of posting a bail is entirely within the discretion of the trial court. The trial court is required to conduct an evidentiary hearing to allow the property owner to provide proof as to his or her prospective loss or harm resulting from the lis pendens. Bankers Lending Services, Inc. v. Regents Park Invs., Inc., 225 So. 3d 884, 885-86 (Fla. 3d DCA 2017). Belongings owners should request the court to consider and include chaser's fees in the bond amount. Id. ("Chaser's fees may exist considered past a trial court in setting the amount of a lis pendens bail if the court concludes that a bond is advisable."). If a bond is required by the court, and the lis pendens is later determined to be improper, then the bond will be used to pay the property possessor'due south damages.
Conclusion
In Florida, a lis pendens is a common tool used in many lawsuits involving title or interest in property. All the same, lis pendens are not always properly filed. Before filing a lis pendens, plaintiffs should obtain legal communication. In add-on, if a holding owner receives notice that a lis pendens has been filed confronting their holding, an attorney may be able to help remove the lis pendens and recover damages.
Source: https://www.jimersonfirm.com/blog/2021/01/lis-pendens-florida/
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