Filing a Lis Pendens relating to litigation in Florida brings up many procedural and legal questions, which can be confusing for non-attorneys and attorneys alike.
The purpose of a notice of lis pendens is to notify third parties that an action regarding specified property has been filed and that whoever subsequently acquires an interest in the property will stand in the same position as the current owner/vendor, and take the property subject to whatever valid judgment may be rendered in the litigation. Taylor v. Steckel, 944 So.2d 494 (Fla. 3d DCA 2006). A notice of lis pendens also operates to protect its proponent, by preventing intervening liens that could impair or extinguish claimed property rights. Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993).
Although most people when taking action to maintain their rights over a property are most concerned with that property being sold to a third party, in many cases the seller becomes unable to sell the property after a lis pendens is in place. This is because title insurance companies will not issue title insurance encumbered by a lis pendens.
When filing a lis pendens relating to real property that has resulted in litigation, the process is different than that of a service lien. The lis pendens is directly related to the action before the court. The clerk at the Court where you have filed your action, upon notice of lis pendens, files the lis pendens with the county, which is then recorded.
Your lis pendens is automatically good for one year (Fla. Stat. 48.23). However, opposing counsel may move to have your lis pendens withdrawn.
The statute states that “A notice of lis pendens is not effectual for any purpose beyond 1 year from the commencement of the action and will expire at that time, unless the relief sought is disclosed by the pending pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time of expiration on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice requires.”
The statute is construed so that parties are not required to file a motion to extend the lis pendens within a year of commencement of the action. See De La Fuente v. Adrian Developers Corp., 967 So.2d 251 (Fla. 3d DCA 2007).
In Fuente four separate lis pendens were filed, one of which was dismissed and one which was extended. The buyer, through their attorney filed their first lis pendens, and after a year filed a second lis pendens. After another year had gone by from the filing of the second lis pendens, buyer filed a third lis pendens. When the seller moved to have the lis pendens withdrawn the court found that the first two lis pendens had expired and granted buyers motion to extend the third lis pendens an additional year (the fourth lis pendens was dismissed because buyer filed it relating to a similar action, which was dismissed by the court). It follows that instead of motioning the court to extend a lis pendens a party may simply file a new on at the expiration of the year. This puts the burden on the opposing party to move the court to dismiss the lis pendens. The filer of the lis pendens may then request that the lis pendens current at the time of the motion be extended.
This procedure had been debated and the dissent’s argument makes some valid points, however until this issue is appealed overturning Fuente, Fuente is still good law.