HOW TO REMOVE A LIS PENDENS NOTICE

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SUMMARY

A party to a lawsuit intended to affect real estate may record a notice on the land records containing the names of the parties, the name and object of the suit, the court where it will be heard, and a description of the property. This is called a notice of lis pendens, which signifies pending litigation. This notice binds any subsequent acquirer of an interest in the real estate to the result of the lawsuit just as if the acquirer were a party to the lawsuit.

The law has procedures a property owner may follow to get the lis pendens notice removed from the land records. If the underlying lawsuit has been filed, the property owner may file a motion with the court to have it discharged. If the underlying lawsuit has not been filed, the property owner may file an application for discharge, together with a proposed order and summons.

In addition, the law allows any interested party to file a motion to discharge a notice of lis pendens if it is not intended to affect property, if certain procedural requirements were not complied with, or the notice never became effective or has become ineffective.

APPLICATION OR MOTION FOR PROBABLE CAUSE HEARING FOR DISCHARGE OF LIS PENDENS NOTICE

The property owner may either make application for, or file a motion for, a hearing to determine whether the notice of lis pendens should be discharged. An application may be made if the litigation affecting the property is not yet before the court; a motion may be made if such litigation is already pending. A motion may be made at any time unless an application was previously ruled upon.

The application must be made to the court where the underlying litigation is planned and must be accompanied by a proposed court order and a summons. The application, order, and summons must be substantially the same as those, which appear as suggested forms in the law. The court must give reasonable notice of the hearing to the person who filed the lis pendens notice. In no event may the notice be given less than seven days before the hearing.

HEARING TO DISCHARGE LIS PENDENS NOTICE

The burden of proof at the hearing is on the person who filed the lis pendens notice to establish that (1) there is probable cause to sustain the validity of his claim, and (2) if the notice involves an allegation of an illegal, invalid, or defective transfer of a real estate interest, the transfer occurred fewer than 60 years before the court claim. After the hearing, the court may either deny the application or motion or order that the lis pendens notice be discharged.

APPLICATION TO STAY DECISION OF COURT PENDING APPEAL

Either party may appeal the court’s decision within seven days of the date it is handed down. The party taking such an appeal may within the seven-day period, file an application with the court which rendered the decision requesting a stay of the decision’s effect pending the appeal. The application must state the reasons for the request and a copy must be sent to the adverse party. A hearing on the application must be held promptly.

If the party taking the appeal gives a bond with surety in an amount the court deems sufficient to indemnity the adverse party for any damages, which might result from the stay, the court must stay the decision pending appeal.

MOTION TO DISCHARGE LIS PENDENS NOTICE BY ANY INTERESTED PARTY

An interested party (as opposed to just the property owner) may file a motion requesting the court to discharge a lis pendens notice in any case in which:

1. the lis pendens is not “intended to affect real property” as defined by law;

2. the recorded lis pendens notice does not contain the information required by law;

3. the property owner did not receive notice of the litigation the recording of the lis pendens notice as required by law; or

4. for any other reason the lis pendens notice never became effective or became in effective.

RECORDING OF DISCHARGE OF LIS PENDENS OR STAY

Any order of discharge or any order of a stay takes effect when a certified copy is recorded in the office of the town clerk in which the order of lis pendens was recorded. The court clerk is not permitted to provide any certified copies of the order until the time for taking an appeal elapses or, if applicable, until a decision is rendered relative to the granting of a stay.

EFFECT OF RECORDING ORDER OF DISCHARGE

When a certified copy of an order discharging a lis pendens notice has been recorded, the lis pendens no longer constitutes constructive notice of the litigation to any third party who acquires an interest in the property that is subject to the litigation.

DURATION OF NOTICE OF LIS PENDENS

No list pendens notice can be valid as constructive notice for more than 15 years unless it is re-recorded within 10 years after it was first recorded and the recording party serves a copy of the notice on the record owner within 30 days after it is re-recorded. If a lis pendens notice is re-recorded it is only valid for 10 years from the re-recording date.

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