A recorded notice of lis pendens indicates that a lawsuit is pending that directly pertains to specific real property. The purpose is to provide notice of the underlying litigation. “Generally speaking, the purpose of a lis pendens notice is twofold: (1) to protect the filing party’s alleged rights to the property that is in dispute in the lawsuit and (2) to put those interested in the property on notice of the lawsuit.” David Powers Homes, Inc. v. M.L. Rendleman Co., Inc. 355 S.W.3d 327,336 (Tex.App.—Houston [1st Dist.] 2011, no pet.). A Houston appeals court case summarizes the basic concept: “A properly filed lis pendens is not itself a lien, but rather it operates as constructive notice to the world of its contents. . . . [Property Code Section13.004(b)] expressly provides that a properly filed notice of lis pendens prevents a purchaser for value from acquiring property free and clear of the encumbrance referenced in the lis pendens.” Cohen v. Sandcastle Homes, Inc., 469 S.W.3d 173 (Tex.App.—Houston [1st Dist.] 2015).
Basis for a Lis Pendens
Chapter 12 of the Property Code states that a notice of lis pendens may be filed only in an action involving title to real property, establishment of an interest in real property, or enforcement of an encumbrance against real property. These specific categories provide the sole and exclusive legal basis for the filing of a lis pendens:
Sec. 12.007(a). After the plaintiff’s statement in an eminent domain proceeding is filed or during 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.
A suit seeking only monetary damages for breach of an earnest money contract would not justify a list pendens, nor would a suit to specifically enforce the contract, because neither of these directly pertain to the property itself—only to a contract to convey the property, a subtle but meaningful distinction.
What constitutes a direct real property interest? Generally, it must involve title, ownership, or a leasehold pertaining to specific realty. The claim must be intrinsic to the land itself and not merely a damage claim arising from a contract or judgment involving the land. “A plaintiff’s request to title of property only to satisfy a money judgment is not a sufficient direct interest in real property.” Sommers v. Sandcastle Homes, Inc., 521 S.W.3d 749 (Tex. 2017). A notice [of lis pendens] that only indirectly affects the property (or is merely collateral to it) is not valid. Flores v. Haberman, 915 S.W.2d 477, 478 (Tex. 1995).
Purely monetary claims are generally insufficient. “In evaluating claims pertaining to real property for purposes of the lis pendens statute, Texas courts generally have distinguished between claims in which a party asserts a direct interest in real property, which qualify for a lis pendens, and claims in which a party asserts only a collateral [monetary] interest in real property, which do not qualify for a lis pendens.” In re. Moreno, No. 14-14-00929-CV, Mandamus Proceeding (Tex.App.—Houston [14th Dist.] 2015).
The requirement that there be a direct interest in the subject property, not just a collateral monetary claim, means that the popular buyer tactic of filing suit against a seller for breach of contract—and then filing a lis pendens in order to hinder the property’s sale to someone else—is improper. A court is required to grant a motion to expunge a lis pendens if the plaintiff fails to establish by a preponderance of the evidence the probable validity of a direct real property claim (Prop. Code Sec.12.0071).
A recent Houston appeals court case has clouded these distinctions somewhat. In Walker v. Walker, the court stated that “for the lis pendens statute to apply, an adequate nexus must exist between the asserted claims and the subject property. Although something less than [a claim to] title is enough to establish this nexus, a claimed interest in the subject property must be direct and not collateral.” The court went on to find that a nebulous unjust enrichment claim was in fact sufficient to establish a real property claim on which a lis pendens could be based—a less-than-helpful ruling for anyone seeking greater clarity in this area. Walker v. Walker, 631 S.W.3d 259 (Tex.App.—Houston [14th Dist.] 2020, no pet.). As case law evolves, Walker may eventually be viewed as outside the mainstream of applicable law.
A Lis Pendens Depends on an Underlying Lawsuit
A lis pendens has no life of its own apart from the lawsuit that underlies it. If there is no lawsuit, there can be no valid lis pendens. “A lis pendens operates only during the pendency of the [underlying] suit, and only as to those matters that are involved in the suit. It terminates with the judgment, in the absence of an appeal.” Rosborough v. Cook, 108 Tex. 364, 367, 194 S.W. 131, 132 (1917). “Because the recording of a lis pendens is specifically authorized by statute and has no existence separate and apart from the litigation of which it gives notice . . . the filing of a notice of lis pendens . . . is a part of the ‘judicial proceeding.’” Kropp v. Prather, 526 S.W.2d 283 (Tex.App.—Tyler 1975, write ref’d n.r.e.). In other words, a lis pendens does not represent a stand-alone claim. It does not survive judgment in the case. Collins v. Tex Mall, L.P., 297 S.W.3d 409, 419 (Tex.App.—Fort Worth 2009, no pet.). However, a timely appeal or motion for new trial extends the operative effect of the lis pendens.
Content and Recording of a Lis Pendens
A notice of lis pendens takes the form of a declarative affidavit filed in the county clerk’s real property records announcing that a lawsuit involving realty is pending in a certain court. The lis pendens must contain certain specific information:
Sec. 12.007(b). The party filing a lis pendens or the party’s agent or attorney shall sign the lis pendens, which must state: (1) the style and number, if any, of the proceeding; (2) the court in which the proceeding is pending; (3) the names of the parties; (4) the kind of proceeding; and (5) a description of the property affected.
Sec. 12.007(c). The county clerk shall record the notice in a lis pendens record. The clerk shall index the record in a direct and reverse index under the name of each party to the proceeding.
Sec. 12.007(d). Not later than the third day after the date a person files a notice for record under this section, the person must serve a copy of the notice on each party. . . .
Sec. 13.004(a). A recorded lis pendens is notice to the world of its contents. The notice is effective form the time it is filed for recorded and indexed. . . .
Property Code Section 13.004(b) protects purchasers for consideration who do not have actual or constructive notice of the proceeding (a bona fide purchaser). Transfer of property subject to a pending suit is valid under these circumstances. However, since the act of recording a document constitutes constructive notice, a purchaser of real property cannot be a bona fide purchaser so long as a lis pendens is publicly recorded.
Actual and Constructive Notice
Although a lis pendens is not a lien, it is a cloud on title and can therefore have the effect of slowing or stopping a sale. Why? Because constructive notice of litigation has now been given to potential buyers (Prop. Code Sec.13.004(a)). Constructive notice is the idea that we are all charged with knowledge of the public records whether we have actually read them or not. This creates a burden on the recipient of the notice to conduct a due-diligence inquiry and determine if action is needed in order to clear title.
“A lis pendens is a notice to warn all persons that certain property is the subject matter of litigation, and that any interests during the pendency of the suit are subject to its outcome. A notice of lis pendens may only be filed during the pendency of an action involving (1) title to real property, (2) the establishment of an interest in real property, or (3) the enforcement of an encumbrance against real property. The purpose of a properly filed lis pendens is to prevent a purchaser for value [a BFP] from acquiring property free and clear of encumbrances referenced in the lis pendens. . . . ” In re Briar Building Houston LLC (609 B.R. 589, Bkrtcy. S.D. Tex. 2019).
The bona fide purchaser rule states that a buyer who purchases real property for valuable consideration without notice of a disputed claim or prior interest does so free of that claim or interest. Actual or constructive notice defeats a claim that one is a BFP. If a lis pendens is properly filed, then a buyer (by definition) cannot be a BFP since constructive notice has been given by the filing; at best the buyer becomes a purchaser pendente lite, meaning that one would take title subject to the outcome of the litigation (Prop. Code Sec. 13001).
Note that if a prospective purchaser has actual knowledge of a pending suit, then the lis pendens doctrine applies whether or not a statutory notice has been filed in the real property records. A buyer cannot know about a lawsuit (from any source, not just the real property records) and still claim to be a BFP. Sommers v. Sandcastle Homes, Inc. 521 S.W.3d 749 (Tex. 2017).
Title Company View of Lis Pendens
Faced with a lis pendens, a title company will usually decline to issue an owner’s policy of title insurance until the lawsuit is settled or the lis pendens is removed. The practical result is that a seller involved in litigation concerning a property interest cannot easily get rid of his problem by selling the property to someone else. With court approval, however, one may potentially bond around a notice of lis pendens and obtain its cancellation by paying an adequate sum into the registry of the court (Prop. Code Sec. 12.008(b)).
Cancellation of Lis Pendens by a Court (Sec. 12.008)
Property Code Section 12.008 governs cancellation of a lis pendens by a court:
Sec. 12.008(a). On the motion of a party or other person interested in the result of or in property affected by a proceeding in which a lis pendens has been recorded and after notice to each affected party, the court hearing the action may cancel the lis pendens at any time during the proceeding [if] the party seeking affirmative relief can be adequately protected by the deposit of money into court or by the giving of an undertaking.
Sec. 12.008(b). If the cancellation of a lis pendens is conditioned on the payment of money, the court may order the cancellation when the party seeking the cancellation pays into the court an amount equal to the total of: (1) the judgment sought; (2) the interest the court considers likely to accrue during the proceeding; and (3) costs.
Sec. 12.008(c). If the cancellation of a lis pendens is conditioned on the giving of an undertaking [posting a bond], the court may order the cancellation when the party seeking the cancellation gives a guarantee of payment of a judgment, plus interest and costs, in favor of the party who recorded the lis pendens. The guarantee must equal twice the amount of the judgment sought and have two sufficient sureties approved by the court. Not less than two days before the day the guarantee is submitted to the court for approval, the party seeking the cancellation shall serve the attorney for the party who recorded the lis pendens a copy of the guarantee and notice of its submission to the court.
Expungement of a Lis Pendens by a Court (Sec. 12.0071)
In certain circumstances a court may order a lis pendens expunged (removed) from the real property records:
Sec. 12.0071(c). The court shall order the notice of lis pendens expunged if the court determines that: (1) the pleading on which the notice is based does not contain a real property claim; (2) the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim; or (3) the person who filed the notice for record did not serve a copy of the notice on each party entitled to a copy under Section 12.007(d).
Sec. 12.0071(d). Notice of a motion to expunge under Subsection (a) must be served on each affected party on or before the 20th day before the date of the hearing on the motion.
Sec. 12.0071(e). The court shall rule on the motion for expunction based on the affidavits and counter-affidavits on file and on any other proof the court allows.
Once a party seeks to expunge a lis pendens the evidentiary burden shifts to the other party to prove by a preponderance of the evidence that the claim made in the underlying lawsuit is probably valid. In Re I-10 Poorman Investments, Inc., 549 S.W.3d 614 (Tex.App.—Houston [1st Dist.] 2017, no pet.).
After a certified copy of an order expunging a notice of lis pendens has been recorded, the previously-filed notice of lis pendens no longer constitutes actual or constructive notice, no longer creates any duty of inquiry on the part of a potential buyer, and no longer affects the validity of any subsequent conveyance of the subject property (Prop. Code Sec. 12.0071).
“Expunction of the lis pendens is a restoration of the chain of title free of the record notice of a potential claim of interest associated with the lis pendens. It is not an adjudication of a later purchaser’s status as a bona fide purchaser under any set of circumstances.” Sommers v. Sandcastle Homes, Inc., 521 S.W.3d 749 (Tex. 2017).
Note that a court may not on its own motion act with regard to a lis pendens. There must be a motion made by one of the parties and then notice to all concerned before action is taken. If a motion to expunge a lis pendens is denied, the remedy for the movant is to seek a writ of mandamus, not to file an appeal. In re. Howard Chong, No. 14-19-00368-CV (Tex.App.—Houston [14th Dist.] 2019).
Cancellation Versus Expungement
The remedies of cancellation and expungement appear to confusingly overlap. A careful reading of each statute is required before deciding on a remedy. Either one can be pursued as may be appropriate under the circumstances since these “statutory methods for nullifying a lis pendens are not exclusive—particularly considering that [Property Code] Section 12.0071 is available only to ‘a party to an action in connection with which a notice of lis pendens has been filed,’ whereas Section 12.008 is more broadly available to ‘a party or other person interested in the result of or in property affected by a proceeding in which a lis pendens has been [recorded],’ and even the latter is not exclusive.” County Inv. Vs. Royal West Inv., 513 S.W.3d 575, 581 (Tex.App.—Houston [14th Dist.] 2016, pet. denied).
Is there a penalty for wrongful filing of a lis pendens?
The Property Code does not grant a specific penalty for filing a wrongful or fraudulent lis pendens. As a result, “courts have given a broad reading to [Property Code] Section 12.008, so as to grant an effective remedy.” Prappas v. Meyerland Cmty. Improvement Ass’n, 795 S.W.2d 794, 798 (Tex. App.—Houston [14th Dist.] 1990, writ denied).
The content of a lis pendens is considered to be privileged just as all that is said in the underlying litigation is privileged. Jetall Companies, Inc. v. Dyke, No.14-19-00104-CV (Tex.App.—Houston [14th Dist.] 2019, no pet.). A lis pendens is just a notice, even if filed with malice.
Note, however, that Rule 13 of the Rules of Civil Procedure provides sanctions if lawsuits are “groundless and brought in bad faith or groundless and brought for the purpose of harassment. . . . ‘Groundless’ for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.” So caution on the part of the plaintiff is in order: the filing of a frivolous lis pendens could fall within the definition of harassment and potentially open the door to Rule 13 sanctions. Without doubt, a fraudulent one could prompt sanctions.
It is also worth looking at Civil Practice & Remedies Code Section 12.002 which addresses “liability related to . . . a fraudulent lien or claim filed against real or personal property.” Since a lis pendens could be interpreted as a claim of sorts, or at least the memorandum of one, the filer could potentially incur liability under this statute if aspects of the lis pendens or the underlying suit are found to be fraudulent. A person who knowingly and intentionally files a fraudulent lien may be held liable in district court for the greater of $10,000 or actual damages, exemplary damages, and recovery of attorney’s fees and costs. It is also a criminal offense. Penal Code Sec. 37.01. If applicable, a cause of action under Chapter 12 of the CP&RC may be included in any suit or counter-suit against the filer of a lis pendens.
Additionally, the filing of a fraudulent lien or claim may form the basis of a cause of action under the many available causes of action under the Deceptive Trade Practices Act (Bus. & Com. Code Sec. 17.44 et seq.).
Lis pendens are a useful tool but are subject to abuse as well as potential consequences for wrongful filing. They are best employed in strict compliance with the statute and not merely to gain advantage in a dispute over monetary aspects of a real estate closing.
Information in this article is provided for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. No attorney-client relationship is created by the offering of this article. This firm does not represent you unless and until it is expressly retained in writing to do so. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well.
Copyright © 2023 by David J. Willis. All rights reserved. Mr. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his website, www.LoneStarLandLaw.com.