By: Justin C. Carlin
A common dilemma in Florida real estate litigation is preventing the property that is the subject of a lawsuit from being dissipated during the lawsuit. For example, if A invested money to purchase real estate purchased by B, and B endeavored to sell the property without providing A with his proportionate share of the sale proceeds, what could A do to prevent the sale of the property during the pendency of his lawsuit against B for breach of contract? Similarly, if a family member co-habiting with another family member who owns property renders significant improvements to the dwelling, and the property owner proceeded to list the property for sale while denying the family member’s right to any portion of the sale proceeds, what could that family member do to ensure that he or she is fairly compensated for the improvements made prior to the sale of the property? The answer lies in Florida’s lis pendens statute, which permits a person claiming a right to property to, when filing a lawsuit against the property owner, file a “notice of lis pendens” (i.e., a notice of pending litigation) against the property, thereby putting all subsequent purchasers on notice of the plaintiff’s claim.
Filing a notice of lis pendens against a property is a powerful tool to prevent the disposition of property in dispute during the pendency of litigation. Without such a tool, the property in contention could freely be disposed by the owner, effectively denying plaintiffs the relief requested in their lawsuits and enabling defendants to evade the claims of potentially meritorious plaintiffs in real estate litigation. When a notice of lis pendens is filed against a property, buyers are often reluctant to purchase the property, knowing that they would be purchasing the property subject to the plaintiff’s claim.
The right to file a notice of lis pendens against a property is found in section 48.23 of the Florida Statutes, which provides as follows:
48.23 Lis pendens.—
(1)(a) An action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby only if a notice of lis pendens is recorded in the official records of the county where the property is located and such notice has not expired pursuant to subsection (2) or been withdrawn or discharged.
(b)1. An action that is filed for specific performance or that is not based on a duly recorded instrument has no effect, except as between the parties to the proceeding, on the title to, or on any lien upon, the real or personal property unless a notice of lispendens has been recorded and has not expired or been withdrawn or discharged.
2. Any person acquiring for value an interest in the real or personal property during the pendency of an action described in subparagraph 1., other than a party to the proceeding or the legal successor by operation of law, or personal representative, heir, or devisee of a deceased party to the proceeding, shall take such interest exempt from all claims against the property that were filed in such action by the party who failed to record a notice of lis pendens or whose notice expired or was withdrawn or discharged, and from any judgment entered in the proceeding, notwithstanding the provisions of s. 695.01, as if such person had no actual or constructive notice of the proceeding or of the claims made therein or the documents forming the causes of action against the property in the proceeding.
If you are involved in a real estate dispute in Fort Lauderdale or anywhere else in Florida, please call a real estate litigation lawyer Fort Lauderdale at (954) 440–0901 to schedule a consultation. The Carlin Law Firm, PLLC regularly provides real estate litigation services to real estate investors and real estate professionals, and regularly assists clients with litigating real estate disputes in Florida state and federal courts.
