The Law of Lis Pendens in Massachusetts and Rhode Island
If you are involved in a real estate dispute in Massachusetts or Rhode Island, it is important to know the law and procedure for obtaining, attacking, and defending a notice of lis pendens. A notice, or memorandum, of lis pendens is a statutory procedure designed to notify potential real estate buyers and other interested persons of pending lawsuits affecting title to real property. Litigation battles arise over lis pendens notices, however, because upon recording in the registry or recorder of deeds they can impede the title holder’s efforts to transfer, mortgage, or develop the property, and may become critical leverage in real estate litigation. Aware of this potential impact, statutory and case law in Massachusetts and Rhode Island has developed tools for attacking and quashing lis pendens notices, and established avenues for resisting these attacks.
I.Origins of Lis Pendens Statutes
States developed lis pendens, or “pending suit,” statues as a remedy to the harsh common law principle that real property conveyed during the pendency of a lawsuit potentially affecting title or interest in the property was taken subject to the lawsuit. Under the common law rule, a potential purchaser or tenant – even one without actual notice of any lawsuit – was considered to be on constructive notice of all lawsuits potentially affecting title or interest in the property, and was thus bound by any subsequent judgment. Lis pendens statutes, once adopted, protected prospective parties in interest by allowing them to obtain notice of pending litigation through the registry or recorder of deeds in the same manner as they obtained information regarding title, such as mortgages, leases, easements, or other encumbrances.
While the lis pendens statues in Massachusetts and Rhode Island had similar origins, the procedures and case law surrounding them has diverged over the years.
II. Law of Lis Pendens in Massachusetts
In Massachusetts, a plaintiff must obtain court approval before recording a notice of lis pendens. M.G.L. c. 184 § 15(a)-(b). In order to obtain court approval, the underlying complaint affecting title or interest in the property and giving rise to the memorandum of lis pendens must name as defendants all owners or leaseholders of record and must be verified and sworn under oath that the facts stated in the complaint are true and that no material facts have been omitted. In approving the memorandum, the court must make a finding that the action constitutes a claim affecting title to, use, or occupation of real property and endorse that finding on the memorandum. The nature of the claim, not its merits, determines whether a lis pendens shall issue. See Sutherland v. Aoelean Development Corp., 399 Mass. 36-38 (1987) (affirming denial of petition to dissolve lis pendens); Wolf v. Gormally, 440 Mass. 699, 701 (2004) (holding that statute applied to all claims affecting title or use and occupation of property).
While lis pendens may be obtained in Massachusetts ex parte, in order to obtain this relief, the court must make an additional finding that either (1) the defendant is not subject to the court’s jurisdiction or (2) there is a clear danger that the defendant, if notified in advance, will convey, encumber, damage, or destroy the property or its improvements. M.G.L. c. 184 § 15(b).
Once obtained, plaintiff must record the memorandum of lis pendens with the registry of deeds along with an affidavit stating that the plaintiff or her attorney has served notice by certified mail to all parties to the action. M.G.L. c. 184 § 15(b).
Litigants should be aware that Massachusetts law generally requires strict compliance with the procedures stated in M.G.L. c. 184 § 15 to obtain and defend a memorandum of lis pendens. See DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903, 906 (2016) (affirming denial of lis pendens, stating, “In view of the serious consequences that may arise from the recording of a memorandum of lis pendens, strict compliance with the statutory prerequisites is required”); McMann v. McGowan, 71 Mass. App. Ct. 513 (2008) (affirming order to dissolve memorandum of lis pendens due to omission of material facts).
Recognizing the significant role of lis pendens in real estate litigation, Massachusetts law provides several avenues for attacking court approval of a lis pendens memorandum and the underlying action. M.G.L. c. 184 § 15(c).
First, if the memorandum of lis pendens is approved ex parte, an aggrieved party may move to dissolve the memorandum and be heard within three days after providing notice to the plaintiff. See Mann, 71 Mass. App. Ct. at 520 (affirming dissolving of memorandum of lis pendens).
Second, an aggrieved party may file a special motion to dismiss the underlying action if the complaint giving rise to the memorandum of lis pendens is frivolous The special motion to dismiss – which is directed at the claim or action itself and not the lis pendens – operates in a manner similar to an anti-SLAPP motion, providing for the award of reasonable attorneys’ fees and costs to the moving party if successful. See Galipault v. Wash Rock Investments, LLC, 65 Mass. App. Ct. 73 (2005) (affirming trial court order dissolving lis pendens, granting special motion to dismiss action, and awarding attorneys’ fees and costs); Reem Property, LLC v. Engleby, 2017 WL 1433302, No. 15-40127-PBS (D. Mass. April 21, 2017) (granting special motion to dismiss and awarding attorneys’ fees and costs).
Third, Massachusetts law provides an immediate right of appeal to a single justice of the Massachusetts Appeals Court under M.G.L. c. 231 § 118 for interlocutory rulings under the lis pendens statute. M.G.L. c. 184 § 15(d). See Wolf, 440 Mass. at 701-702; Shrewsbury v. Seaport Partners L.P., 63 Mass. App. Ct. 272) (2005) (statutory right of appeal from order denying approval of memorandum of lis pendens not limited to motion denied ex parte).
Finally, while misuse of lis pendens procedure may expose a litigant to fees, costs, and other counterclaims, Massachusetts law states that the recording of a notice of lis pendens in connection with a lawsuit potentially affecting title to real estate lies within the absolute privilege afforded to judicial proceedings, thereby protecting the litigant from a claim of slander to title. See Powell v. Stevens, 69 Mass. App. Ct. 87 (2007) (affirming trial court’s granting of summary judgment dismissing claim of slander to title). Other counterclaims, however, may be available to an aggrieved property owner depending on the factual circumstances of the case.
III.Law of Lis Pendens in Rhode Island
In Rhode Island, a plaintiff may record a notice of lis pendens without court approval. A notice of lis pendens may arise from any action concerning title to real property, or any interest or easement therein. R.I. Gen. Laws § 9-4-9. The notice must state the names of the parties to the lawsuit affecting title to real estate, or any interest or easement therein, the court where the complaint is filed and the date of filing, a brief summary of the complaint, and a description of the real estate affected, and must be recorded with the recorder of deeds in the city or town in which the real estate is situated. The plaintiff is required to provide a copy of the notice by mail to all named parties at their last known address, though failure to mail a copy of the notice does not invalidate the lis pendens.
A party aggrieved of a notice of lis pendens may file a motion to quash in the trial court. See Gill v. Wagner, 813 A.2d 959, 961 (R.I. 2002) (vacating trial court order quashing notice of lis pendens). An order quashing a notice of lis pendens is appealable. Id. at 959, n.1.
The Rhode Island Supreme Court has affirmed the constitutionality of Rhode Island’s lis pendens statute, which requires no prior notice or hearing. In George v. Oakhurst Realty, Inc., 414 A.2d 471 (R.I. 1980), the defendant challenged the statute on the grounds that it amounted to an unconstitutional taking in violation of due process of law. Reversing the trial court’s quashing of the notice of lis pendens, the Rhode Island Supreme Court rejected the due process argument, stating “Lis pendens […] is not a lien but merely puts all prospective buyers on notice that there is a suit pending involving an issue of title to real property. We therefore find that due process of law does not mandate notice and opportunity to be heard before the filing of a notice of lis pendens.” Id. at 474.
Recording notice of lis pendens in Rhode Island is not without risk for the plaintiff. Rhode Island courts recognize and have awarded significant damages to claimants under a cause of action for slander to title arising from the malicious filing of a lis pendens notice. In Montecalvo v. Mandarelli, 682 A.2d 918, 925 (1996), the Rhode Island Supreme Court affirmed a slander to title judgment against a broker for maliciously recording a notice of lis pendens, awarding $50,000 in damages for diminution in value of the property resulting from the lis pendens. More recently, in Carrozza v. Voccola, 90 A.3d 142, the Rhode Island Supreme Court affirmed trial court’s finding that plaintiff was liable for slander to title due to his malicious filing of notices of lis pendens and affirmed an award of compensatory damages of $630,000 based on the loss of value of the affected properties along with $422,500 in punitive damages and approximately $175,000 in attorneys’ fees and expenses.
The recording of a notice of lis pendens is a powerful tool in real estate litigation, but it is not without procedural hurdles and risk. If you are involved in a dispute that may affect title or interest in real property in Massachusetts or Rhode Island, you should consult real estate litigation counsel before deciding how to proceed.