A lis pendens, Latin for “lawsuit pending,” is a written notice to the public that a lawsuit has been filed involving a piece of real estate. So, when is the appropriate time to file a lis pendens?
The first requirement is that there has to be a direct claim against the property subject to the lis pendens. Florida’s Third District Court of Appeal has held in this regard the following, “It is well settled that in the absence of a duly recorded instrument, where there is no direct claim cognizable under the law against or upon the property . . . no lis pendens may be asserted under any conditions against the realty.” Ness Racquet Club, LLC v. Renzi Holdings, Inc., 959 So. 2d 758, 761 (Fla. 3d DCA 2007).
The case law construing the lis pendens statute makes clear “the statutory language ‘founded on a duly recorded instrument’ imposes the strict requirement that the lawsuit be based on the terms contained in the recorded document itself.” Suarez v. KMD Const., Inc., 965 So. 2d 184, 187 (Fla. 5th DCA 2007); see also Am. Legion Cmty. Club v. Diamond, 561 So. 2d 268, 272 (Fla. 1990) (phrase “founded on a duly recorded instrument” in lis pendens statute “applies only to those cases in which the suit is based on the terms and provisions contained in the recorded document”).
It is also well settled that “a suit to set aside a conveyance of real property for fraud is not an action founded on a duly recorded instrument, entitling a party to lis pendens as of right.” Avalon Associates of Delaware Ltd. v. Avalon Park Associates, Inc., 760 So. 2d 1132, 1135 (Fla. 5th DCA 2000). This is because such an action is “not founded on the deed but on circumstances preceding and surrounding the execution of the deed.” Diamond, 561 So. 2d at 271.
In other words, even if the alleged fraud or other tortious misconduct “incidentally involves a deed, it is not founded upon the deed itself.” Mohican Valley, Inc. v. MacDonald, 443 So. 2d 479, 481 (Fla. 5th DCA 1984).
If the individual filing the lis pendens fails to establish a clear connection between the claim and the property, the Court is obligated to dissolve the lis pendens “unless the proponent establishes a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.” Conseco Servs., LLC v. Cuneo, 904 So. 2d 438, 439 (Fla. 3d DCA 2005).
In this context, a “fair nexus” requires a “good faith, viable claim.” India Am. Trading Co., Inc. v. White, 896 So. 2d 859, 860 (Fla. 3d DCA 2005). It is axiomatic that a pleading that “will not support a claim against the specific property at issue cannot provide a basis for tying it up by a filing of notice of lis pendens.” Tortu v. Tortu, 430 So. 2d 531, 532 (Fla. 4th DCA 1983).
It is also important to note that a defendant must have standing to maintain a lis pendens. “To have standing with regards to a lis pendens action, one must have ownership rights in the property.” FCD Dev., LLC v. S. Florida Sports Comm., Inc., 37 So. 3d 905, 909 (Fla. 4th DCA 2010).
For more information on lis pendens, contact one of our experienced real estate litigation attorneys at 305-570-2208. You can also email our lead attorney Eduardo directly at eduardo@ayalalawpa.com.
We at Ayala Law PA are passionate about helping those in legal need, so please don’t hesitate to schedule a case evaluation with us online here.
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