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Lis pendens: what a notice of a pending lawsuit does to land

A lis pendens is a notice of pending litigation, filed with the clerk of superior court, that a lawsuit may affect title to a parcel. Once the clerk cross-indexes it, anyone who buys or lends on that parcel is bound by the outcome of the suit as if they were a party.

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Quick summary: This guide explains what a lis pendens is under North Carolina law, which lawsuits allow one, where it is filed, what it does to a buyer or lender, and how it ends. It is for land buyers, sellers, and lenders who find one in a title search or face one in a dispute. The key takeaway: a lis pendens binds the next owner to the lawsuit, and it is filed with the clerk of court, not the register of deeds.

What a lis pendens is

A lis pendens is a recorded notice that a lawsuit is pending and may affect title to a specific piece of land. The Latin means “suit pending.” North Carolina’s statutes call it a notice of pending litigation, in Chapter 1, Article 11.

The notice does not decide anything. It does not prove the claim, and it is not a lien for money. It warns the public that a court may change who owns the land or what rights attach to it. Under the filing statute, a party who wants the benefit of constructive notice must file a separate, independent notice for that purpose.

Which lawsuits allow a lis pendens

A lis pendens is allowed only in the kinds of actions the statute lists. Section 1-116 names five:

  1. Actions affecting title to real property.
  2. Actions to foreclose a mortgage or deed of trust, or to enforce any lien on real property.
  3. Actions in which an order of attachment issues and real property is attached.
  4. Certain actions for injunctive relief over sedimentation and erosion control on land-disturbing activity.
  5. Actions for asset freezing or seizure under a criminal statute.

A dispute over a boundary, a contract to convey, a partition, or a quiet title claim usually falls in the first group. A suit for money alone, such as an unpaid invoice, usually does not, because the judgment would not change title. Whether a given complaint qualifies is a question for a North Carolina attorney.

The article reaches past state court. Section 1-120.1 applies it to suits affecting title to real property in the federal courts. A city or county may also file a lis pendens with a building or minimum housing complaint or order, when its ordinance provides for it under Section 1-120.2.

How a lis pendens is filed and indexed

A lis pendens is filed with the clerk of superior court in each county where any part of the land lies. The filing statute requires four contents:

  • The name of the court where the action is pending.
  • The names of the parties.
  • The nature and purpose of the action.
  • A description of the property.

The notice may be filed when the action begins, after the property is attached, or after a pleading states a qualifying claim. It must be filed in every county where part of the land lies to be effective against buyers and lien creditors in that county, including the county where the suit is pending.

The clerk then cross-indexes the notice in a record called the Record of Lis Pendens. A copy must be served on the other parties, in a manner that depends on when it is filed.

Watch for: The Record of Lis Pendens sits in the clerk of superior court’s office, not with the register of deeds. A search limited to the deed books can miss it. Ask your closing attorney whether the title search covered the clerk’s records in every county where the tract lies.

What a lis pendens does to a buyer or lender

A lis pendens binds every later buyer and lender to the result of the lawsuit. Under Section 1-118, the cross-indexing is constructive notice to a purchaser or encumbrancer of the property. A person whose deed or deed of trust is executed or registered later is bound by all later proceedings, to the same extent as a party to the action.

In practice that means:

  • A buyer takes subject to the suit. If the plaintiff wins and the court changes title, the buyer’s deed does not protect the buyer.
  • A lender’s lien is at risk. A deed of trust recorded after the notice can be cut off by the judgment. See Deed of trust: how a loan is secured by land in North Carolina.
  • The sale usually stalls. Title insurers and lenders often decline to close until the notice is cancelled or the claim is resolved. A contract’s title condition decides what the buyer may do then. See What is in a land purchase agreement?.

The notice does not stop an owner from signing a deed. It makes the deed carry the lawsuit with it.

Take action: Before you sign a contract on a tract, have the clerk’s lis pendens record searched with the deed and judgment indexes. Start with One parcel. Everything the record says, in order.

How a lis pendens ends

A lis pendens ends in one of three ways: it lapses, it is cancelled, or the lawsuit concludes.

It lapses. Under Section 1-119, the notice is of no avail unless service on the defendant, or the first publication of notice of the summons, follows within 60 days after the cross-indexing. When a plaintiff gets permission to file the complaint within 20 days and misses that deadline, the notice becomes inoperative. The clerk may cancel it on the clerk’s own motion and must cancel it on the application of any interested party.

It is cancelled by order. Under Section 1-120, the court may order the notice cancelled after the action is settled, discontinued, or abated. An aggrieved person applies, shows good cause, and gives the notice the court directs. The clerk endorses the cancellation on the margin of the record.

The suit ends. A final judgment fixes the title question. The judgment, not the notice, then governs the land.

A seller who wants a notice removed early needs a North Carolina attorney. The grounds and the timing depend on the court and the claim.

Why a title search catches it

A careful title search catches a lis pendens because the examiner searches the clerk’s records as well as the deed books. The notice names the parties and describes the land, so a search by owner name and by parcel turns it up.

Two facts make a lis pendens easy to miss. It is filed with the clerk of court, and it must be filed in each county where part of the land lies. A tract on a county line needs both counties searched. See Title search for land: what it finds and who does it for who performs the search and how title insurance fits.

When a search finds a lis pendens, the next questions are for the attorney: what the suit claims, whether the notice is still effective, and whether the claim can be settled before closing. A suit over title can end in a court order that settles ownership. See Quiet title action: how a court settles who owns land.

Key recap

  • A lis pendens is a notice of pending litigation that a lawsuit may affect title to specific land.
  • North Carolina allows one in the five kinds of actions listed in Section 1-116, led by actions affecting title and foreclosures.
  • It is filed with the clerk of superior court in each county where part of the land lies, and the clerk cross-indexes it.
  • After cross-indexing, a later buyer or lender is bound by the suit as if a party to it.
  • It lapses without timely service, and the court may cancel it after the action is settled, discontinued, or abated.

Questions

Can I buy land with a lis pendens on it?

You can sign a deed, but you take the land subject to the lawsuit and are bound by its result. Most buyers, lenders, and title insurers wait until a North Carolina attorney confirms the notice is cancelled or the claim is resolved.

Is a lis pendens the same as a lien?

No. A lien secures payment of a debt from the land. A lis pendens is notice that a lawsuit may change title or rights in the land. A foreclosure or lien enforcement suit can carry both.

Where do I look for a lis pendens in North Carolina?

In the Record of Lis Pendens kept by the clerk of superior court in each county where any part of the land lies. A closing attorney’s title search should include it.

How long does a lis pendens last?

It lasts while the action is pending, unless it lapses for lack of timely service under Section 1-119 or a court orders it cancelled under Section 1-120. A notice filed by a city or county under Section 1-120.2 remains until cancelled.

References

Primary sources cited on this page, in APA style.

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