Understanding Lis Pendens in Texas
What is Lis Pendens?
Lis Pendens, meaning “pending lawsuit” in Latin, is a public notice indicating ongoing litigation involving real property. This document alerts potential buyers, lenders, and interested parties about the legal action affecting the property's ownership or encumbrances. It is intrinsically linked to the associated lawsuit and remains effective during the pendency of that suit or until dissolved.
Tex. Prop. Code § 13.004. Once a judgment is rendered, the Lis Pendens terminates unless an appeal or motion for a new trial is filed, extending its effect. It does not constitute a stand-alone claim and ends with the lawsuit’s resolution.
When Do You File A Lis Pendens?
When a Lis Pendens filed, timing can be critical in safeguarding their party’s interest. Submitting a Lis Pendens prior to filing a lawsuit is not recommended, as it requires an existing lawsuit to be valid. During the preparation stage, it is important to compile all necessary documents and seek legal counsel to arrange the filing of both the lawsuit and the Lis Pendens. Once the lawsuit is initiated, the Lis Pendens should be promptly recorded to notify potential buyers or lenders of the ongoing litigation.
How To File A Lis Pendens
To file a Lis Pendens in Texas, the party initiating the lawsuit must follow procedures outlined in the Texas Property Code. This includes submitting a declarative affidavit to the county clerk’s office where the property is located. The affidavit must generally contain:
- Names of the parties involved
- Legal description of the property
- Court where the lawsuit is pending
- Nature of the claim
Never file a Lis Pendens unless you have filed litigation
claiming an ownership or other legal right in the real property that
is the subject of the Lis Pendens!
Lis Pendens Impact on Real Property Transactions in Texas
In Texas, Lis Pendens is governed by the Texas Property Code and allows filing during actions involving title to real property, establishment of an interest in real property, or enforcement of an encumbrance against real property. Texas Property Code Section 13.004(b) prevents a subsequent purchaser for value from acquiring the property free and clear of the encumbrances mentioned in the Lis Pendens. Any subsequent buyer or lender is deemed to have constructive notice of the pending legal action and its potential outcome. Thus, even if someone purchases the property, they cannot acquire it free of the encumbrances mentioned in the Lis Pendens.
“A lis pendens operates only during the pendency of the suit, and only as to those matters that are involved in the suit. It terminates with the judgment, in the absence of an appeal.” Rosborough v. Cook, 108 Tex. 364, 367, 194 S.W. 131, 132 (1917). “Because the recording of a lis pendens is specifically authorized by statute and has no existence separate and apart from the litigation of which it gives notice . . . the filing of a notice of lis pendens . . . is a part of the ‘judicial proceeding.’” Kropp v. Prather, 526 S.W.2d 283 (Tex.App.—Tyler 1975, writ ref’d n.r.e.). In other words, a lis pendens does not represent a stand-alone claim. It does not survive judgment in the case. Collins v. Tex Mall, L.P., 297 S.W.3d 409, 419 (Tex.App.—Fort Worth 2009, no pet.)
Key Considerations for Lis Pendens Notices: What You Need to Know
- Content of the Lis Pendens Notice
The content of a Lis Pendens notice is crucial. In many states, these notices are regulated by statutes, requiring strict adherence to specific requirements. Failing to meet these statutory demands can render the notice invalid. Even in jurisdictions where lis pendens is governed by common law, the adequacy of the notice is often a key issue in disputes.
Example: If a Lis Pendens notice lacks essential details mandated by state law, such as a proper description of the property or the legal basis of the claim, it can be challenged and potentially invalidated.
- The Power of Lis Pendens Notices
Lis Pendens notices serve as powerful legal tools. By recording a Lis Pendens in real property records, it notifies others of a pending dispute regarding the property. This can affect any subsequent interests or purchases.
Example: A prospective purchaser involved in a dispute over a letter of intent to acquire real estate can strengthen their claim by recording a Lis Pendens, assuming they have a legitimate and enforceable right to the property. Similarly, a developer can use Lis Pendens to protect their interests in a disputed real estate development contract.
- Risks of Improper Use of Lis Pendens
Using Lis Pendens notices improperly can lead to significant liabilities. Filing a Lis Pendens prematurely or for an improper purpose can result in slander of title claims. This can expose the filing party to substantial legal consequences, including liability for attorneys' fees.
Example: Overzealously filing a Lis Pendens without a valid underlying claim can lead to a lawsuit for slander of title, potentially costing the filer both financially and legally.
- Importance of Understanding Local Laws and Lis Pendens
Lis pendens laws and practices vary widely between jurisdictions. Misunderstanding these local differences can lead to severe repercussions.
Example: According to Tex. Prop. Code § 13.004, this legal notice can also be expunged or canceled by a court if it was fraudulently filed, as stated in Tex. Prop. Code §§ 12.0071; 12.008. Additionally, courts have the authority to cancel a lis pendens if it was filed by individuals seeking a collateral interest rather than a direct interest in the real property, as demonstrated in the case In re Collins, 172 S.W.3d 287, 295 (Tex. App.—Fort Worth 2005). In a recent Texas case, an out-of-state attorney filed a Lis Pendens without understanding Texas-specific requirements. The notice was dismissed due to technical deficiencies and irrelevance to the real estate in question.
Optimize Your Lis Pendens Strategy
Understanding Lis Pendens is essential for anyone involved in real estate transactions or legal disputes related to property in Texas. This legal notice plays a critical role by providing constructive notice of ongoing litigation, ensuring all parties are aware of the pending legal action and its potential impact on the property in question. Whether you are a buyer, seller, or lender, being informed about a Lis Pendens can significantly influence your decisions and actions. The presence of a Lis Pendens can affect the marketability of the property, potentially delaying or complicating transactions.To maximize the effectiveness and minimize the risks associated with Lis Pendens notices:
- Know the Law:
Understand the specific statutory or common law requirements for filing a Lis Pendens in your Texas County.
- Be Accurate:
Ensure all details of the Lis Pendens and the notice it provides are correct and complete.
- Use Appropriately:
Only use Lis Pendens when there is a legitimate and enforceable interest in the property. Never file a Lis Pendens if you do not have a present right to land interest.
- Consult Local Experts:
Always consult with local legal Lis Pendens experts to navigate all legal concerns to avoid becoming liable for filing a wrongful Lis Pendens.
How to Remove a Lis Pendens Notice in Texas
You remove a Lis Pendens by filing a Motion to Expunge Lis Pendens in the county where the Lis Pendens was filed. A Motion to Expunge Lis Pendens will ask the court to remove the Lis Pendens and will be supported by sufficient evidence justifying its removal:
If someone has filed a Lis Pendens notice (which alerts others that there is a pending lawsuit involving a property), any party involved in the lawsuit can:
- Ask the court to remove the notice (e.g. Motion to Expunge).
- Notify all affected parties at least 20 days before the court hearing.
- Provide evidence with their request to remove the notice.
Upon filing, the Court Court will do the following:
- Allow people to present their evidence in Court.
- Issue orders to help parties gather the necessary information related to the request, such as whether:
- The lawsuit actually involves a property claim.
- The person who filed the notice cannot prove their property claim is likely to succeed.
- The person who filed the notice did not properly notify everyone who should have been informed.
- Hold a hearing on the Motion to Expunge.
Once a Motion to Expunge Lis Pendens is granted, the Lis Pendens notice and any related information no longer serve as a warning about the lawsuit or property, do not require anyone to investigate the property further, and do not impact the validity of a property sale. As a result, the property can be sold or mortgaged without being affected by the claims mentioned in the notice.
Understanding Lis Pendens in Texas with Expert Legal Assistance from Wilson Whitaker Rynell
Given the complexities and legal implications associated with a Lis Pendens,
it is advisable to seek legal counsel before filing a Lis Pendens. An experienced attorney can provide valuable guidance, help navigate the legal intricacies, and ensure that your interests are adequately protected throughout the process. The attorneys at Wilson Whitaker Rynell are well-versed in handling real estate litigation and can assist you in the process of filing a lawsuit that requires a Lis Pendens. With their expertise, you can confidently address any legal challenges and protect your property rights effectively.
The attorneys at Wilson Whitaker Rynell assist clients with Lis Pendens in Dallas, Houston, Austin, Plano, Frisco, Addison, Richardson, Fort Worth, Irving, Carrollton, Taylor, Dallas County, Denton County, Collin County.
Contact Us or Call 972-248-8080 for a Free Consultation!
How Do I Prepare and File a Lis Pendens?
A notice of lis pendens is a sworn statement filed in the county clerk's real property records to announce that a lawsuit involving real estate is pending in a specific court. This notice must include:
- The case style and number (if any)
- The court where the case is pending
- The names of the parties involved
- The type of legal proceeding
- A description of the property affected
Download a Sample Texas Lis Pendens Form
The party filing the lis pendens or their attorney must sign it. The county clerk will then record the notice in a lis pendens record and index it under each party's name.
Within three days of filing, a copy of the notice must be served to each party involved.
Once recorded, a lis pendens provides public notice of its contents and is effective immediately. This notice protects against fraudulent property transfers during litigation. However, a buyer who purchases property without knowing about the lis pendens (a bona fide purchaser) is protected unless the lis pendens has been recorded, as recording serves as public notice.
Is a Lis Pendens a Lien on Property?
A Lis Pendens is not a lien on property. A Lis Pendens is a cloud on title slowing or stoppling property sales.
“A lis pendens is a notice to warn all persons that certain property is the subject matter of litigation, and that any interests during the pendency of the suit are subject to its outcome. A notice of lis pendens may only be filed during the pendency of an action involving (1) title to real property, (2) the establishment of an interest in real property, or (3) the enforcement of an encumbrance against real property. The purpose of a properly filed lis pendens is to prevent a purchaser for value [a BFP] from acquiring property free and clear of encumbrances referenced in the lis pendens. . . . ” In re Briar Building Houston LLC (609 B.R. 589, Bkrtcy. S.D. Tex. 2019).
Does a Lis Pendens Depends on an Underlying Lawsuit?
A lis pendens is inherently tied to the lawsuit it references and cannot exist independently. Without an active lawsuit, there is no valid lis pendens. It functions only while the underlying legal case is ongoing and pertains solely to the issues involved in that case. Once a judgment is reached and no appeal is filed, the lis pendens ceases to have any effect.
Can You File a Lis Pendens If You Are Only Requesting Money Damages?
No, you cannot file a lis pendens if you are only requesting monetary damages. A lawsuit seeking only monetary damages for breach of an earnest money contract does not warrant a lis pendens, nor does a suit to specifically enforce the contract. This is because neither of these legal actions directly involve a claim on the property itself; they pertain solely to a contract related to the property's conveyance.
What Happens If I Wrongful File a Lis Pendens?
Wrongfully filing a lis pendens can have serious consequences. If it is determined that the lis pendens was filed without a valid basis, the filer may face several potential repercussions:
- Legal Penalties: The court may impose sanctions for abusing the lis pendens process, including fines or other penalties.
- Damages: The party harmed by the wrongful filing may sue for damages, claiming the lis pendens caused financial loss or harm to their property interests.
- Attorney’s Fees: The filer may be ordered to pay the opposing party’s attorney fees incurred in challenging the wrongful lis pendens.
- Dismissal: The wrongful lis pendens can be dismissed, removing its effect from the property records.
- Reputational Harm: Filing a wrongful lis pendens can damage the filer’s credibility and reputation, potentially affecting future legal proceedings.



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