Trey Wilson- Real Estate Lawyer in San Antonio                         
                    

LIS PENDENS ONLY PROPER WHEN TITLE TO LAND AT ISSUE

WHAT IS LIS PENDENS?

“Lis pendens provides a mechanism for putting the public on notice of certain categories of litigation involving real property.” Prappas v. Meyerland Cmty. Improvement Ass’n, 795 S.W.2d 794, 795 (Tex. App.-Houston [14th Dist.] 1990, writ denied). “A lis pendens is a notice of litigation, placed in the real property records, asserting an interest in the property, and notifying third parties that ownership of the property is disputed.” In re Miller, 433 S.W.3d 82, 84 (Tex. App.-Houston [1st Dist.] 2014, orig. proceeding).

THE LIS PENDENS STATUTE

Section 12.007 of the Texas Property Code states, in relevant part,

[D]uring the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property, a party to the action who is seeking affirmative relief may file for record with the county clerk of each county where a part of the property is located a notice that the action is pending.

TEX. PROP. CODE ANN. § 12.007(a).

EFFECT OF PROPERLY RECORDED LIS PENDENS

The filing of a notice of lis pendens in the real property records notifies all persons that the real property is the subject matter of litigation and that any interests acquired during the pendency of the suit are subject to its outcome. See BLACK’S LAW DICTIONARY.  Stated differently, “A notice of lis pendens broadcasts `to the world’ the existence of ongoing litigation regarding ownership of the property.” Sommers for Alabama & Dunlavy, Ltd. v. Sandcastle Homes, Inc.,521 S.W.3d 749, 753 (Tex. 2017) (quoting TEX. PROP. CODE ANN. § 13.004(b)). “When the notice is properly filed, even a subsequent purchaser for value does not take the property free and clear.” Id.

LIS PENDENS MUST RELATE TO LAWSUIT INVOLVING TITLE TO REAL PROPERTY

Under Section 12.007, the critical requirement for a valid Lis Pendens is that the pending action involve

  1. “title to real property,
  2. the establishment of an interest in real property, or
  3. the enforcement of an encumbrance against real property.”

Jordan v. Hagler, 179 S.W.3d 217, 221 (Tex. App.-Fort Worth 2005, no pet.) (citing TEX. PROP. CODE ANN. § 12.007(a)).

To satisfy this requirement, “the suit on which the lis pendens is based must claim a direct interest in real property, not a collateral one.” In re Collins, 172 S.W.3d 287, 293 (Tex. App.-Fort Worth 2005, orig. proceeding); see Long Beach Mortg. Co. v. Evans, 284 S.W.3d 406, 414 (Tex. App.-Dallas 2009, pet. denied) (citing In re Wolf, 65 S.W.3d 804, 805 (Tex. App.-Beaumont 2002, orig. proceeding) (per curiam)); Countrywide Home Loans, Inc. v. Howard, 240 S.W.3d 1, 4 (Tex. App.-Austin 2007, pet. denied); Jordan, 179 S.W.3d at 221.

“In other words, the property against which the lis pendens is filed must be the subject matter of the underlying lawsuit.” Collins, 172 S.W.3d at 293; see Long Beach Mortg., 284 S.W.3d at 414 (citing In re Fitzmaurice, 141 S.W.3d 802, 805 (Tex. App.-Beaumont 2004, orig. proceeding); Wolf, 65 S.W.3d at 806 (“both stating an `adequate nexus’ must exist between the claim and the subject property”); see also Flores v. Haberman, 915 S.W.2d 477, 478 (Tex. 1995) (per curiam) (issuing writ of mandamus directing the trial court to cancel notice of lis pendens where the underlying lawsuit sought a constructive trust on property in satisfaction of a judgment plaintiffs sought against defendant because the suit claimed only a collateral interest in the property).

THE TAKEAWAY

To determine the validity of a lis pendens courts look to [the] pleadings to determine whether the underlying suit seeks to establish an interest in the real property involved. If so, the Plaintiff is entitled to file and maintain  a lis pendens. If not, the Lis Pendens is improper and subject to expunction.