Lis pendens affects all types of property, even those in foreclosure proceedings. The amount of houses affected by lis pendens has grown so much that ForeclosureData.com has a page dedicated solely to lis pendens listings in Delaware. So why and how does lis pendens affect the sale of a property? Today that’s what we will discuss. As always, if you have something you’d like to add to the conversation leave a comment below or send us an email.
What is Lis Pendens?
Latin for “suit pending” lis pendens secures a plaintiff’s right to specific real property. For instance, if a defendant is selling a house in Brandywine, DE and the plaintiff believes he or she has a right to that property (or to a portion of the proceeds from the sale) they would use a lis pendens to block the sale of the property.
Anyone can file a lis pendens against real property without a bond, however if the defendant feels the lien is wrongful they may demand that the plaintiff post a bond. The court recognizes the plaintiff’s right to protect their interest, but that doesn’t overshadow the defendant’s rights. Delaware requires all plaintiffs to use lis pendens bonds to cover any type of financial loss the defendant may face should the lis pendens be deemed unlawful or wrongful.
The bond proves to the court that the plaintiff is not filing the lis pendens in bad faith. Once the bond is approved then the property holder, as well as those involved in the selling/buying process, will be notified of the lis pendens action.
Here’s a look at Delaware statue concerning lis pendens (please note that mandates may differ within the state so please ask your Jurisco bonding expert about your particular area be it Dover, Greater Newark or Wilmington, DE):
(a) In any action instituted in any court of this State having civil jurisdiction or in the United States District Court for the District of Delaware, any party asserting a claim, the object of which is to affect the title to, or enforce an equitable lien on, real estate may, after filing of such claim, file in the office of the recorder of deeds of any county in which all or any part of the affected real estate is situate a written notice of the pendency of the action, which shall be under oath, and shall set forth:
(1) The court in which the action was brought, the caption of the action and the civil action number;
(2) The object of the action or the affirmative relief sought;
(3) A legal description sufficient to identify the property affected; and
(4) A designation of the names of each party against whom the notice is directed to be indexed.
(b) No notice of pendency shall be filed under this chapter:
(1) On a claim relating to real estate which, if sustained, would entitle the party to recovery solely of money or money damages; or
(2) To enforce a mechanic’s lien or to foreclose upon a mortgage at law, which actions shall continue to be governed by the notice procedures of this Code specifically applicable thereto.
67 Del. Laws, c. 59, § 1.;
To learn more about lis pendens bond and its associated cost please contact Jurisco today.