Getting and Removing a Lis Pendens in Massachusetts

 By Robert Nislick

When Massachusetts real estate owners are involved in land disputes, they frequently want to know how getting a lis pendens may help them. A plaintiff may seek to obtain and record a memorandum of lis pendens on a defendant’s property when instituting a proceeding that affects the title to real property or the use and occupation thereof or the buildings thereon. See G. L. c. 184, § 15 (a). A lis pendens often provides a party with leverage against his litigation opponent. Since a recorded memorandum of lis pendens essentially tells the world that a controversy exists concerning a piece of land, a plaintiff can usually place his rival at a practical disadvantage by recording such an instrument. Lenders and buyers will naturally have reservations about obtaining an interest in land, where they will be bound subsequently by the court’s judgment in the underlying controversy.

“A memorandum of lis pendens is a notice on the record title of real estate that reflects the pendency of any action that ‘affects the title to real property or the use and occupation thereof.’”[1] “[T]he fundamental remedial purpose of the statute [is] to ‘ensure that a prospective third-party transferee can, with the exercise of reasonable prudence, acquire information relevant to a decision whether to consummate the transaction.’”[2]

From the perspective of someone who may want to buy a piece of real estate that people are presently fighting about, a memorandum of lis pendens gives the innocent prospective buyer vital information that he might not otherwise have. Without a recorded memorandum of lis pendens, a buyer may unwittingly buy his way into a lawsuit. The memorandum of lis pendens protects the innocent buyer by informing him, ahead of time, that the seller may not be able to convey good and clear record and marketable title, or that someone is asserting a claim to that property.

Let’s say you are the plaintiff, the person who is asserting a claim to the other person’s property. Perhaps you are asserting a claim of title by adverse possession against your neighbor. Similarly, you may have acquired a prescriptive easement over your neighbor’s property. It might be that your neighbor is blocking your access to a right of way.

Alternatively, you may have a binding offer to purchase real estate or purchase and sale agreement. The seller is refusing to consummate the transaction and you want to sue him for specific performance. These are various situations in which a plaintiff may seek a lis pendens.

A party seeking a memorandum of lis pendens should reasonably determine that his claim “affects the title to real property or the use and occupation thereof or the buildings thereon”. See G. L. c. 184, § 15 (a).

If it does, then the plaintiff can file a motion for a finding and endorsement of a memorandum of lis pendens. A party seeking a memorandum of lis pendens should follow carefully the procedures for obtaining a lis pendens set forth in G. L. c. 184, § 15 (b), which include filing a verified complaint, including a certification that “the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom”, and naming all owners of record as defendants.

“Upon motion of a party, if the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon, a justice of the court in which the action is pending shall make a finding to that effect and endorse the finding upon the memorandum.” G. L. c. 184, § 15 (b), third sentence (emphasis added).

Under certain circumstances, a plaintiff may move for an ex parte motion for memorandum of lis pendens. This means that the plaintiff is asking the court for relief without the other side having notice or being present. “If the memorandum is approved ex parte, it shall contain an additional finding that either (1) the defendant is not then subject to the jurisdiction of the court in that action, or (2) there is a clear danger that the defendant, if notified in advance of the endorsement of the memorandum, will convey, encumber, damage or destroy the property or the improvements thereon.” G. L. c. 184, § 15 (b), fifth sentence.

A defendant whose land has been encumbered by a memorandum of lis pendens can file a special motion to dismiss, a statutorily created remedy which is designed to expeditiously remove an unjustified lis pendens, and to dismiss frivolous claims brought in connection with the acquisition of such a lis pendens. See G. L. c. 184, § 15 (c). The General Laws also provides that the court award an aggrieved party costs and attorney’s fees in connection with the grant of a special motion to dismiss. The statutory mechanism for filing a special motion to dismiss a lis pendens, which was enacted by St. 2002, c. 496, and codified at G. L. c. 184, § 15.

“General Laws c. 184, § 15, provides ‘a mechanism for expedited removal of an unjustified lis pendens, including dismissal of frivolous claims supporting an approved lis pendens.’”[3] A party can “move for dissolution of the lis pendens and seek dismissal of the underlying claim if he or she believes that such claim is unjustified and frivolous, upon an expedited hearing and with entitlement to costs and reasonable attorney’s fees if successful. See G. L. c. 184, § 15(c), added by St. 2002, c. 496, effective January 31, 2003. . . . A litigant abused by bad faith claims and the use of lis pendens for their prosecution is far from remediless.”[4] “Under G. L. c. 184, § 15 (c), a party who believes that a claimant’s action or claim supporting a lis pendens is frivolous may file a special motion to dismiss.”[5]

“[T]he statute creates the special motion to dismiss as a way for the defendant to go beyond clearing the record title of the memorandum, and to gain dismissal of the entire claim. . . . [T]he special motion to dismiss deals with the sufficiency of the claim as a legal and factual matter, testing for frivolity by the distinct standards the statute sets out. The special motion to dismiss is considered by the court, if necessary, with the benefit of affidavits and other evidence. And in the case of allowance of a special motion to dismiss, the court is required by the statute to award ‘the moving party costs and reasonable attorneys fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery.’”[6]

Attorney Robert Nislick is a Massachusetts real estate attorney who practices in Superior Court and Land Court. Contact him today for more information.

[1] McMann v. McGowan, 71 Mass. App. Ct. 513, 519 (2008), quoting Wolfe v. Gormally, 440 Mass. 699, 700 (2004).

[2] Wolfe v. Gormally, 440 Mass. 699, 706 (2004), quoting Debral Realty, Inc. v. DiChiara, 383 Mass. 559, 562 (1981).

[3] McMann, 71 Mass App. Ct. at 519, quoting Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 81 (2005).

[4] Powell v. Stevens, 69 Mass. App. Ct. 87, 90 (2007).

[5] Faneuil Investors Group, LP, v. Board of Selectmen of Dennis, 458 Mass. 1, 2 n.2 (2008).

[6] Sapera v. VBDC, LLC, Land Court Miscellaneous Case No. 325720 (GHP) slip op. at 3 (Piper, J.) (Apr. 6, 2009).