QUICK NOTE: DETERMINING “FAIR NEXUS” TO SUPPORT LIS PENDENS

Posted on December 12, 2021December 12, 2021 by Edward Garber

When a lis pendens is recorded and the underlying action is NOT based on a duly recorded instrument and is NOT a construction lien action, an evidentiary hearing should generally be held to determine: (a) whether there is a fair nexus to support the basis of the lis pendens, and if so, (b) the amount of the lis pendens bond. Check out this posting to determine more on the meaning of “fair nexus” to support the basis of a lis pendens in this context.

Without supporting a fair nexus between the underlying lawsuit and property subject to the lis pendens, the lis pendens will be dissolved / discharged. It is important to note, however, that even if a fair nexus is supported, the party maintaining the lis pendens will, and should, be required to post a lis pendens bond as determined by the trial court. If the lis pendens bond is not posted within a reasonable period of time set by the trial court, the lis pendens should be dissolved / discharged.

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.

QUICK NOTE: PARTY ENTITLED TO EVIDENTIARY HEARING ON MOTION TO DISCHARGE LIS PENDENS NOT BASED ON DULY RECORDED INSTRUMENT

Posted on February 25, 2020February 25, 2020 by Edward Garber

When a lis pendens is recorded and it is NOT founded on a duly recorded instrument such as a mortgage or a lien, the Court has the power to either discharge the lis pendens or require that a lis pendens bond be posted. Typically, when the lis pendens is not recorded on a duly recorded instrument, the defendant will move to discharge the lis pendens or require the plaintiff to post a lis pendens bond to cover the defendant’s damages if the lis pendens is wrongfully recorded. In a recent case, the Court held that a party is entitled to an evidentiary hearing on this motion and the plaintiff has the burden in in proving a fair nexus between the claim on the property and the lawsuit.

QUICK NOTE: LIS PENDENS BOND WHEN LIS PENDENS NOT FOUNDED ON RECORDED INSTRUMENT OR STATUTE

Posted on April 17, 2019February 25, 2020 by Edward Garber

If a lis pendens is recorded and the lis pendens is NOT founded on a duly recorded instrument (e.g., mortgage or lien), a lis pendens bond should be recorded. The lis pendens bond should cover prospective damages associated with the wrongful / unjustified recording of a lis pendens that were suffered by the property owner. The reason being is that the lis pendens has an effect on the title to the property as long as the lis pendens is recorded. Damages could stem from a decline in the market value of the property, continued upkeep and maintenance of the property, and there may also be (and, really, should be) consideration for loss of investment return associated with the equity in that property. Finally, prospective attorney’s fees that could be incurred in discharging the lis pendens should also be included. For more information on this, please check out this article.