If you are in a construction dispute where you are pursuing a construction lien foreclosure action, recording a lis pendens is crucial. Did I say crucial? “[O]ne purpose of a notice of lis pendens is to alert all others that title to the property is involved in litigation and that ‘future purchasers or encumbrancers of that property’ are at risk of being bound by an adverse judgment.” Henry v. AIM Industries, LLC, 47 Fla.L.Weekly D653b (Fla. 2d DCA 2022). There really is never a reason not to record a lis pendens when pursing a construction lien foreclosure. Please remember that – don’t forget to record the lis pendens!
There are times a lis pendens is recorded when the lis pendens is NOT based on a duly recorded instrument (e.g., construction lien or mortgage). A lis pendens, however, is recorded because the dispute is tied to the property in which the lis pendens is being recorded. The lis pendens is recorded to best safeguard the plaintiff’s interest in the real property without fear that the real property will be sold impacting the purpose (and, of course, security) of the lawsuit.
“When an action is not founded on a duly recorded instrument or chapter 713 lien [construction lien], but alleges a nexus between the real property and the claims set forth, an evidentiary hearing is required on a motion to discharge lis pendens.” Henry, supra.
“[T]he supreme court held that a lis pendens could not be dissolved if, ‘in the evidentiary hearing on request for discharge, the proponent [of the lis pendens] can establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.’ ” Discharging a notice of lis pendens without affording the proponent notice and an opportunity to be heard is a departure from the essential requirements of law.
Henry, supra (internal citations omitted).
If you are involved in a dispute where there is a fair nexus between the dispute and the real property, discuss with your counsel the pros/cons of recording a lis pendens. Yes, the other side will and should move to discharge the lis pendens which should be subject to an evidentiary hearing. However, if your lawsuit hinges on the security of the real property, this strategically will presumably be the needed avenue during the pursuit of the litigation.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.