Pending Litigation Notice

Lis Pendens

A Lis Pendens, from Latin meaning “litigation pending,” is a formal notice to alert third parties of an ongoing legal dispute concerning a property. It serves to inform any prospective buyer or third party that litigation over the land or property is pending.

The Lis Pendens alerts any potential purchaser or interested party to the existence of legal proceedings that may affect ownership or title. This  outcome of the litigation binds third parties so that it is not undermined by the sale or transfer of the property before the dispute is resolved.

A purchaser aware of a registered Lis Pendens can choose to proceed with the property acquisition, knowing it is subject to the ongoing dispute. The Lis Pendens does not block the sale of land or assets but places the buyer at risk, sto that hey acquire the property subject to the outcome of the litigation.

Registration of a Lis Pendens

The Judgments (Ireland) Act 1844 governed Lis Pendens until the  Land and Conveyancing Law Reform Act 2009. For a Lis Pendens to be registered in the Central Office of the High Court, the claimant must have initiated proceedings in either the Circuit Court or High Court.

These proceedings must involve

• any action in the Circuit Court or the High Court in which a claim is made to an estate or interest in land (including such an estate or interest which a person receives, whether in whole or in part, by an order made in the action) whether by way of claim or counterclaim in the action; and
• any proceedings to have a conveyance of an estate or interest in the land declared void.

It has been held that the following criteria apply to register a Lis Pendens:

• The plaintiff must assert a proprietary interest in the property.
• The defendant should have an interest in the specified property.
• The claim in the proceedings must involve an interest in the property in question.

If the title is registered, the Lis Pendens must also be registered with the Property Registration Authority on the property’s folio to affect the property.

Central Office Register

The following documentation must be lodged in the Judgments Section of the Central Office  in order to register a Lis Pendens: 3

• Stamped Form No. 31
• A duplicate copy of the above form.
• A copy of the originating document i.e. Summons or Civil Bill
• A Form 64 of the Property Registration Authority rules is lodged if notification on the Folio in the Property Registration Authority is required (pursuant to Rule 128 of the Property Registration Authority rules)

Central Office staff  review the submission to ensure it is complete and meets procedural requirements. This includes verifying that the litigation involves an interest in property, which qualifies it for lis pendens registration. The lis pendens is then recorded in the High Court’s register of pending actions.

 

Property Registration

The register of pending actions is usually searched on a property or security transaction. It is part of the Judgments Register.

A lis pendens  binds a purchaser of unregistered land without actual knowledge of it provided it has been registered in the Central Office of the High Court within 5 years before the making of the conveyance to the purchaser.

In the case of a registered  title, the applicant must register the lis pendens with the PRA so that it binds the registered title. It is a type of burden which must be registered to affect the registered title.

The Central Office issues a document which can be registered in the Property Registraiton Authority.

Removal of a Lis Pendens

A Lis Pendens can be removed by court order with the consent of all parties agreeing to vacate it. Otherwise a Notice of Motion supported by Affidavit is required.

This application seeks removal of the Lis Pendens on specific grounds, such as:

• Case Settlement or Conclusion
• Unreasonable Delay – If there has been an unreasonable delay in the proceedings, The 2009 Act (s. 123) allows the court broad discretion to remove a Lis Pendens
• Absence of Genuine Claim – In Kelly and O’Kelly v IBRA Limited (2012), a Lis Pendens was registered solely to prevent a property sale, which the court ruled as an abuse of process, noting that a valid Lis Pendens must reflect a genuine claim to a property interest.

If the property in question is sold, the Lis Pendens remains until an application for its removal is made under the 2009 Act. However, if a mortgagee or charge holder with a priority interest sells the property, the Lis Pendens is cancelled upon registration of the transfer by the Land Registry, and subsequent buyers are unaffected by the litigation.

Issues in Litigation

The registration of a lis pendens can occur without any court intervention and is a purely administrative process that can be completed with little or no input from a legal advisor. In contrast, however, the procedure to vacate a lis pendens is onerous and protracted, with significant cost implications (unless the party who registered it consents to its removal).

From a conveyancing perspective, if the sale of a property proceeds where a lis pendens has been registered as a burden against that property, the lis pendens will remain as a burden registered against the property until such time as an application to remove the lis pendens has been made under the 2009 Act.