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EASEMENT DISPUTES & LIS PENDENS

Let's say you and a neighbor are in dispute about whether you've got a valid easement to cross over his property. Suppose the disputed portion of land is a dirt path that you need to use in order to access the boat launch at the pond shared by all the homes in your neighborhood. You assert that you have a right to travel on this dirt path. He disagrees, and even goes so far as to put up a locked gate across the path thereby blocking your access.

You decide to sue your neighbor and let the court decide.

In the meantime-that is, before the court has issued its decision-you notice a "For Sale" sign on your neighbor's front lawn. You are relieved and think that this will be the end of your problems about the path once he sells the property.

Not so fast. You need to protect your rights before any sale takes place. You need to alert potential buyers that there is an ongoing legal dispute that affects a right, title or interest in the real property about to be sold. The failure to provide adequate notice may ultimately result in your inability to have the court's judgment in the pending proceedings apply to the buyer.

The best mechanism for providing notice in this instance is a lis pendens. In fact, "lis pendens" is Latin for "pending lawsuit". In order to become effective, a memorandum of lis pendens must first be filed with and approved by the court, and then recorded in the registry of deeds in the county where the disputed property is located.

In Massachusetts, the statute governing lis pendens is M.G.L. c. 184, § 15. There are several requirements that must be satisfied in order to properly file a memorandum of lis pendens, the least of which is filing with the court a verified complaint signed by the plaintiff under the pains and penalties of perjury. (If an unverified complaint has already been filed in the action, this can be corrected by filing an amended complaint in the form of a verified one.) The complaint must name as defendants "all owners of record and any party in occupation under a written lease."

Additionally, the following must be set forth within the memorandum prior to recording with the registry of deeds:

  • the names of the parties to the proceeding;
  • the court in which [the lawsuit] is pending;
  • the date of the writ or other commencement thereof;
  • the name of the town where the real property liable to be affected thereby lies; and
  • a description of the real property sufficiently accurate for identification

Id. § 15(a).

If the court approves the memorandum of lis pendens, it should be recorded in the appropriate registry of deeds immediately. Once recorded, any potential buyers are considered to have notice of the pending lawsuit and therefore will be subject to the outcome of the pending litigation.

In extreme cases, a lis pendens can sometimes be obtained without first notifying the defendants ahead of time (called an ex parte motion), though those cases must meet an additional, more rigorous set of standards before the court will allow it. Depending on the judge, it can be difficult to obtain a lis pendens ex parte, and so usually a hearing is ultimately required.

There are other instances were a lis pendens might make sense in disputes related to real property (like a purchase and sale agreement that goes sour prior to the sale), and there are some that do not qualify under the statute (like a lawsuit that has arisen relative to land use under a wetlands regulation). These are the kinds of situations where our office can assist individuals who think they might need this remedy in order to protect their rights. Conversely, we are also able to assist those landowners who might be subject to a lis pendens-either as current or future landowner-and can advise how best to navigate both the pending litigation, title insurance issues, and getting the lis pendens dissolved.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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