The term “lis pendens” translates to “pending lawsuit,” but is defined by Florida courts as “the jurisdiction, power, or control which courts acquire over property involved in a pending suit.” Med. Facilities Dev., Inc. v. Little Arch Creep Props., Inc., 675 So. 2d 915, 917 (Fla. 1996). “The purpose of a notice of lis pendens is to alert creditors, prospective purchasers and others to the fact that the title to a particular piece of real property is involved in litigation.” Sheehan v. Reinhardt, 988 So. 2d 1289, 1290 (Fla. 2d DCA 2008) (quotation omitted). Simply, a lis pendens provides notice to third parties that a lawsuit has been filed concerning title to or some interest in the property.
For example, during real estate closings, public records are checked to see if there are any lis pendens on the property. If you were buying a house, you would want to know if the title to the property is tied up in litigation. On the flip side, if you were embroiled in litigation with a drifter who swindled you out of your property you would record a lis pendens in case the drifter tries to sell the property to a third party. See also, Chiusolo v. Kennedy, 614 So. 2d 491, 492 (Fla. 1993) (“The notice is … a cloud on the title that creates a priority for the party that filed the lis pendens if that party prevails in the pending litigation.).
Most commonly, a lis pendens is based on a pending lawsuit, which itself is “founded on a duly recorded instrument,” i.e. a deed or mortgage. Fla. Stat. § 48.23(3). For example, they are always recorded in connection with mortgage foreclosures because the outcome could have an effect on title. A lis pendens is rarely proper outside of that context. Why? Filing a lis pendens not based on a document recorded in public records is a dick move. The owner will almost certainly be unable to sell the property while it is in place. See Deguzman v. Balsini, 930 So. 2d 752, 754 (Fla. 5th DCA 2006) (emphasis added) (“A lis pendens places a cloud on the title that did not previously exist, if not based on a recorded instrument.”).
If the Plaintiff’s Claim is Not Founded on a Recorded Instrument a Lis Pendens may be Improper
The less common but odious lis pendens is not founded on a recorded instrument, which are usually improperly filed as a dick see except in extremely limited instance where the plaintiff can show that there is fair connection, or fair nexus, between the title or equitable ownership of the property and the dispute at issue in the lawsuit. The starting point is Fla. Stat. § 48.23(3),which provides that “[w]hen the pending pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 … the court shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions.”
Consequently, bogus lis pendens, which are not based on mortgage, deed, etc., should be met with a motion to dissolve. Florida’s courts have held:
- Unless an initial pleading shows that an action is founded on a duly recorded instrument concerning the real property described in the lis pendens, the court has the power to control the notice of lis pendens by discharging it or by requiring the party who filed the lis pendens to post a bond.
DeGuzman, 930 So. 2d at 754. In fact, the Florida Supreme Court has held “[a] court must dissolve a lis pendens that is based on an unrecorded document unless the proponent ‘establishes a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.’” Conseco Servs., LLC v. Cuneo, 904 So. 2d 438, 439 (Fla. 3d DCA 2005) (quoting Chiusolo v. Kennedy, 614 So. 2d 491, 492 (Fla. 1993)) (emphasis added). The plaintiff has the burden of establishing the “fair nexus” through a “good faith, viable claim.” Nu-Vision, LLC v. Corp. Convenience, Inc., 965 So. 2d 232, 234 (Fla. 5th DCA 2007).
However, “[a] lis pendens is not an appropriate instrument for use in promoting recoveries in actions for money judgments.” DeGuzman, 930 So. 2d at 755 (citing 51 Am. Jur. 2d Lis Pendens § 28 (2000)). “Where the primary purpose of a lawsuit is to recover money damages and the action does not directly affect the title to or the right of possession of real property, the filing of a notice of lis pendens is not authorized.” Sheehan, 988 So. 2d at 1291. If the plaintiff “can be afforded complete relief on a claim without reference to the title to the real property, a lis pendens cannot be maintained.” Blue Star Palms, LLC v. LED Trust, LLC, 128 So. 3d 36, 38 (Fla. 3d DCA 2012). See also, Cimbler v. Brent, 963 So. 2d 812, 813 (Fla 3d DCA 2007) (in the absence of a direct claim cognizable under the law against or upon the property, burdened by the lis pendens, no lis pendens may be asserted against the realty); Lake Placid Holding Co. v. Paparone, 414 So. 2d 564, 566 (Fla. 2d DCA 1982) (“A complaint which will not support a claim against the specific property at issue cannot provide a basis for tying it up by a filing of notice of lis pendens.”).
In Conseco Servs., LLC, the plaintiff sued the defendants seeking repayment of a loan. Conseco Servs., LLC, 904 So. 2d at 440. The plaintiff recorded a lis pendens against a defendants’ property based on its claimed that they sold assets and mortgaged other property to buy a home in Florida, all to hide assets by maintaining the Florida home as homestead property. Id. However, the Court found that the plaintiff “has not shown a good faith viable equitable lien claim that would call into question the legal or equitable ownership of the homestead property.” Id. The Court found that trial court properly dissolved the lis pendens since there was no showing of the requisite “fair nexus” between the ownership of the property and the dispute embodied in the suit. Id.
In Deguzman, the plaintiff recorded a lis pendens against a defendant’s property in litigation to enforce and require payment of child support. Deguzman, 930 So. 2d at 754. The Court found that “a lis pendens … should not have been filed because there is no connection between Balsini’s litigation to enforce and require payment of child support and the real property against which she filed the lis pendens.” Id. at 754–55. The plaintiff “completely failed to show any grounds to assert equitable or legal title to the property, nor any connection to it other than as a potential source from which to recoup child support.” Id. at 755.
Finally, in Nu-Vision, LLC, a landlord filed a suit for eviction alleging that the tenant had breached a commercial lease. Nu-Vision, LLC, 965 So. 2d at 234. The tenant filed a counterclaim for specific performance or in the alternative for breach of contract. Id. at 234. In connection with its counterclaims, the tenant recorded a lis pendens on the property. Id. The trial court granted the landlord’s motion to discharge the lis pendens. Id. On appeal, the Court affirmed the discharge, finding that the tenant failed to show a fair nexus between its claims and the property’s title for a lis pendens as a matter of law. Id. at 235.
A Plaintiff Must Post a Bond to Maintain a Lis Pendens not Founded Upon a Duly Recorded Instrument
Even in those rare instances where a lis pendens is not based on a recorded instrument and the plaintiff can show that there is fair connection, or fair nexus, between the title or equitable ownership of the property and the dispute at issue in the lawsuit, courts have required that the plaintiff to post a bond with the court in order to maintain the lis pendens. See Suarez v. KMD Constr., Inc., 965 So. 2d 184, 188 (Fla. 5th DCA 2007) (reversing trial court’s order for failure to dissolve lis pendens or require bond for lis pendens not founded upon a duly recorded instrument).
- If the lis pendens is not based on a duly recorded instrument affecting the title to the property, the court, in its discretion, may require that the party filing the lis pendens post a bond when the property owner shows that damages will likely result in the event the notice of lis pendens is unjustified.
DeGuzman, 930 So. 2d at 754. The purpose of such a bond is “as a vehicle for protecting the property holders just as the lis pendens protects the plaintiff and third parties.” S & T Builders v. Globe Prop., Inc., 944 So. 2d 302, 304 (Fla. 2006) (holding that Fla. Stat. § 48.23(3) authorizes a trial court to require the posting of a bond in order to maintain a lis pendens). See also, Hotel Europe, Inc. v. Aouate, 766 So, 2d 1149, 1152 (Fla. 3d DCA 2000) (requiring bond for lis pendens not founded upon a duly recorded instrument because the lis pendens caused potential loss and damage by preventing property to be sold).
The damages a property owner can recover for an improperly filed lis pendens are generally measured as the “difference between the fair market value at the time of the filing of the lis pendens and the fair market value at [the] time of its termination, plus any consequential damages, including attorney’s fees.” FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So. 3d 905, 909 (Fla. 4th DCA 2010). The trial court is required to conduct an evidentiary hearing to allow the property owner to provide proof as to his prospective loss or damage resulting from the lis pendens and “[a]ttorney’s fees may be considered by a trial court in setting the amount of a lis pendens bond if the court concludes that a bond is appropriate.” Bankers Lending Servs., Inc. v. Regents Park Invs., Inc., 225 So. 3d 884, 885–86 (Fla. 3d DCA 2017).
Conclusion
A frivolous lis pendens improperly clouds title to the property. A lis pendens is frivolous if the plaintiff cannot establish a good faith viable claim that would affect title to the property or the plaintiff can be afforded complete relief on her claim without reference to the title to the property. If the plaintiff has recorded a lis pendens but is not foreclosing on a mortgage on the property, not foreclosing on a construction lien on the property, not trying to quieting title to the property, or has not pled a cause of action involving title to or interest in the property, i.e., the plaintiff is not seeking specific performance of a contract to sell the property, the lis pendens may have been improperly recorded.
In these instances, the property owner can make a motion to the court to have the lis pendens dissolved. However, even if a plaintiff can establish a good faith, viable claim based on an unrecorded document, the Court should require the plaintiff to post bond. The bond, which should include attorney’s fees, is necessary since the lis pendens places a cloud on the owner’s title to the property, which will prevent her from selling the property.