Proper Use of a Lis Pendens

By: James A. Lenes, Esq.

In litigation involving real estate, plaintiffs generally wish to record a document on the land records, known as a “lis pendens,” against the property of the defendant. The purpose of recording the lis pendens is to provide notice to the world that the defendant’s property is subject to a lawsuit. A notice of lis pendens warns third parties, such as prospective purchasers, that the title to the property is in litigation. The advantage of recording a lis pendens is that it affects the defendant’s right to transfer his interest in the real property because the notice binds any subsequent purchaser or encumbrancer as if he were made a party to the litigation. Naturally, this impedes any sale or transfer of the property.

“A lis pendens is a creature of statute and a person invoking its provisions must comply with the statutory requirements.” (Internal quotation marks omitted.) Peterson v. Connecticut Attorneys Title Ins. Co., 142 Conn. App. 34, 43, cert. denied, 309 Conn. 913 (2013). C.G.S. § 52-325 (a) permits the recording of a notice of lis pendens in the office of the town clerk in which real property is located if the plaintiff has commenced an action “intended to affect [the] real property.” Id.

Actions that are “intended to affect real property” are those “(1) actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property; (2) actions whose object and purpose is to establish or enforce previously acquired interests in real property; (3) actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property.” General Statutes § 52-325(b).

Given the impact of that a lis pendens has on the marketability of the property, plaintiff’s attorneys occasionally push the boundaries of the statute and record the notice even though the litigation does not really affect the property at issue.  A property owner burdened by a notice of lis pendens may challenge its validity on two independent grounds: (1) the absence of probable cause to sustain the lis pendens claim; or (2) noncompliance with the procedural requirement of an effective lis pendens notice,” (Internal quotation marks omitted.) Sanstrom v. Strickland, 11 Conn. App. 211, 212 (1987). In other words, a lis pendens may be discharged if the court finds that the notice itself was defectively prepared or when the underlying litigation does not actually affect the title of or interest in the real estate owned by the adverse party.

Examples of cases where a lis pendens are properly filed would include adverse possession claims and mortgage foreclosures. A party seeking to purchase the property would have to understand that along with acquiring the property, the party would become subject to a neighbor’s adverse possession claim or the lender’s foreclosure action.

In actions alleging trespass or nuisance against the defendant property owner, such as when water from a neighbor’s property flows onto the plaintiff’s property, a lis pendens is generally not allowed. Connecticut courts have consistently granted motions to discharge the lis pendens in nuisance and/or trespass cases. Perri v. Constantine, 2008 Conn. Super. LEXIS 931 (April 21, 2008, Downey, J.). For example, in Bielonko v. Blanchette Builders Inc., 1999 WL 68650 (February 2, 1999, Lavine, J.), the plaintiffs alleged that the actions of the defendant changed the natural contour and topography of the land substantially increasing the amount and flow of surface water onto the plaintiff’s property. The court discharged a lis pendens finding that the plaintiff’s did not have a cause of action directly or indirectly affecting the title to, or interest in, the property of the defendants or any future owners.

Another court also discharged a lis pendens filed in a case where the plaintiff sought an injunction for water drainage and flooding from construction on the defendant’s property. Eppoliti Realty Co. v. Piacentini, 1993 Conn. Super. LEXIS 303 (January 28, 1993, Fuller, J.). The court reasoned that if the plaintiff recovers under either a nuisance or trespass theory, it may obtain an injunction against further discharges, recover damages, or both. If an injunction is issued to stop or alter the drainage, it will be issued against the defendants, not the defendant’s property. The plaintiff will not receive any interest in the defendants’ property, and the injunction will not affect the defendant’s title to the property.

If you become involved in real estate litigation it is very possible that a lis pendens will be recorded. If you are the plaintiff, then you will certainly want the leverage which a lis pendens can provide because the notice binds any subsequent purchaser as if he were made a party to the litigation. If you are the defendant, it is possible that the lis pendens may be discharged depending on the circumstances. Either way, it is important that you have a real estate litigation attorney that understands the benefits and limitations of this process.