The Latin term Lis Pendens translates as ‘litigation pending’. A Lis Pendens puts any third party on notice that there is pending legal challenge regarding land or property. The purpose of a Lis Pendens’ is to benefit a third party who might otherwise be unaware that legal proceedings are in being concerning the land or property.
In order to register a Lis Pendens in the Central Office of the High Court, proceedings must have issued in the Circuit Court or High Court and involve a claim against the interest in land or a claim to have a conveyance and interest in land declared void.
As per the decision in Tola Capital Management LLC v Joseph Linders and Patrick Linders (2014), in order to register a Lis Pendens, a party must establish the following:
1. The plaintiff is claiming proprietary interest in the property;
2. The defendant has an interest in the said property; and
3. The proceedings set out a claim to the interest in the said property.
REMOVAL OF A LIS PENDENS
A Lis Pendens can be removed by the following methods:
1. By obtaining a court order on consent.
2. By Notice of Motion Grounded on affidavit seeking its removal when the following occurs:
a. the action has settled or concluded.
b. there has been unreasonable delay (delay was at issue in Conor Sheeran v Patrick Buckley (2022), whereby the Receiver successfully applied to remove a Lis Pendens due to the difficulties it caused him in selling the subject property. The case highlighted that a person who registered a Lis Pendens should prosecute their claim with reasonable expedition. Mr. Justice Barnville held that unreasonable delay existed as proceedings had not progressed in over 3 years since they came into being, however delay would be assessed on a case by case basis. It is stated in s 123 of the 2009 Act that “A Court may make an order to vacate a Lis Pendens”, highlighting the wide discretion afforded to the court under the legislation, whether to vacate a Lis Pendens or not.
c. the proceedings are not being conducted in a bona fide manner (seen in Kelly and O’Kelly v IBRA Limited (2012) whereby proceedings were deemed to have been set down purely for the purposes of frustrating the sale of the property. The court ruled that there must be a genuine claim to an interest in land and the registration of a Lis Pendens could not be used in an abuse of power.)
If the subject property is sold, the Lis Pendens will remain as a burden registered against the property until an application for its removal has been made under the 2009 Act. However, if a lender or charge holder, with a first ranking charge, sells a property as mortgagee, once the transfer is registered in the Land Registry, it will overreach the Lis Pendens which will then be cancelled by the Land Registry. Any subsequent purchaser cannot be bound by the outcome of proceedings where the Lis Pendens is cancelled from the folio.
ISSUES IN LITIGATION
Lis Pendens are often depicted as frustrating the ability of a litigant to deal with property due to being associated with uncertainty and complications, as questions are raised over rights of ownership. The registration of a Lis Pendens greatly limits a proprietor’s ability to sell or deal with the property freely without doubts being raised from potential purchasers or mortgagors.
The current registration methods are disproportionate to the high bar set in order to remove a Lis Pendens. The cost and efforts to register a Lis Pendens are minimal with little or no screening regarding the validity of its registration. Legal advice or authority is not a pre-requisite to registration, same can be affected by a lay person. A Lis Pendens’ effects are far reaching, having been likened to the draconian effect of an injunction, as their removal is a laborious task and their impact is vast. No legal intervention is required to register a Lis Pendens however a court order is required for their removal. Cregan J noted in Tola Capital Management LLC v Joseph Linders and Patrick Linders (2014) that one of the big issues with this area of the law is that a Lis Pendens can operate almost identically to an injunction, without providing any of the necessary protections that accompany injunctive relief. (15-112 Judgment of Mr. Justice Cregan on Westlaw).