Lis Pendens: Safeguarding Rights in Property under Litigation

A lis pendens, also called a notice of lis pendens or notice of pendency, is a legal tool in Virginia and many other states that can be a powerful device in the right circumstances. Essentially, a lis pendens is a public notice that a suit concerning title to property is pending. This article serves as a summary of lis pendens as it is used in Virginia.

Lis Pendens as a Legal Concept

The concept of lis pendens stems from the state’s strong interest in giving determinative and final effect to judicial proceedings. It was traditionally used to protect a plaintiff from alienation of property already subject to suit. On the other hand, the modern lis pendens statute serves to protect good faith purchasers who buy property without real or record notice (because no notice was filed among the relevant court records) from litigation either pending or not yet filed as to the purchased property. Importantly, such property subject to a lis pendens in Virginia can be either real or personal. The lis pendens itself is not formally a seizure of the property, but instead makes third parties aware by record in the property’s chain of title that any interests they might acquire in that property after the filing of the lis pendens are subject to any valid resulting judgment.

Effecting a Lis Pendens

To be effective, a memorandum of lis pendens must be recorded in the clerk’s office of the Circuit Court of the county or the city wherein the identified property is located. This is a corollary to the rule that Circuit Courts have jurisdiction only over property located within the county or city in which the court is located.

Certain specific information in the memorandum is required. Per Va. Code § 8.01-268, the memorandum must include:

(i)                 the title of the cause of action or attachment,

(ii)               the general object of the action or attachment

(iii)             the court where the action or attachment is pending,

(iv)             the amount of the claim asserted by the plaintiff,

(v)                a description of the property, and

(vi)             the name of the person whose estate is intended to be affected.

Additionally, if the action is to enforce a zoning ordinance, the memorandum must include a description of the alleged zoning violation. The lis pendens becomes effective when the clerk indexes the notice. However, the lis pendens remains effective only during the pendency of the indicated suit. Because the lis pendens directs third parties to a specific suit, it is often very important to read the entire file of the indicated action very carefully, as the effect of the lis pendens is controlled by the suit.

Dismissal or Satisfaction of a Lis Pendens

Under Va. Code § 8.01-268, if either the underlying action or attachment is quashed or dismissed or the court renders judgment for the defendant(s), the court will direct in its order that the names of all interested parties (as recorded in the attachment or lis pendens) be listed for the clerk, and that the attachment or lis pendens be released. The clerk will then file the court order among the chain of title records for the property, and note on the originally filed memorandum that the lis pendens has been dismissed or satisfied, whichever the case may be. If an appeal or writ of error is possible, the clerk will not record the order or mark the lis pendens as dismissed or satisfied until the expiration of the time in which such appeal or writ could be applied for, or if applied for, until after final judgment or decree is entered by the appellate court.

Caution and Good Judgment

As with many creditor’s remedies, sound judgment is advisable in the use of lis pendens as sanctions may sometimes be imposed for failure of due diligence or bad faith. In appropriate cases, court imposed sanctions may include requiring the plaintiff to pay the defendant’s reasonable expenses incurred because of the suit, including costs and a reasonable attorney’s fee. Proper caution and good judgment begins with seeking appropriately experienced legal counsel before filing a lis pendens.