Preparing For A World When Lis Pendens Protections Are All But Ober
“BEWARE REAL PROPERTY LITIGATORS” warns a former chair of the Real Property, Probate and Trust Law Section of the Florida Bar.
This advice, given in response to a new appellate ruling blunting the protections of Florida’s lis pendens statute, signals the potential apocalyptic impact of a decision by the Fourth District Court of Appeal in Ober v. Town of Lauderdale-By-The-Sea. While this decision marks a win for municipalities around the state dealing with unoccupied “zombie” properties, it could haunt the foreseeable future for lenders, borrowers, and junior lien-holders.
Under Florida law, a lis pendens provides formal notice to all interested parties of an pending legal action to enforce a lien encumbering a given property. Florida’s lis pendens statute states that the recording of a lis pendens effectively bars the enforcement of any subsequently recorded liens against the property unless the lienholder intervenes in the proceedings within 30 days. The statute also provides that anyone who acquires an interest in the property during the “pendency of the action” shall take that interest subject to the rendering of a final judgment in such action.
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