Advanced Property Litigation and Remedies

A lis pendens (literally "litigation pending") is a notice recorded in the public records indicating that a lawsuit affecting the title to or possession of real property has been filed. Recording a lis pendens provides constructive notice to all subsequent purchasers and lenders that the property is subject to pending litigation. Anyone who acquires an interest in the property after the lis pendens is recorded takes that interest subject to the outcome of the lawsuit.

Lis pendens is a powerful tool because it effectively prevents the owner from selling or refinancing the property until the litigation is resolved. For this reason, courts in many states have imposed requirements for obtaining lis pendens, including demonstrating a real property claim, posting a bond, or obtaining court approval before recording. Wrongfully filing a lis pendens can result in liability for damages, including the owner's lost opportunity costs from being unable to sell or refinance.

A partition action is a legal proceeding to divide co-owned property when the co-owners cannot agree on its use, management, or disposition. Any co-owner has the absolute right to seek partition, regardless of the size of their ownership interest or the wishes of the other co-owners. Courts can order partition in kind (physical division of the property) or partition by sale (sale of the property with proceeds divided among the co-owners).

Partition by sale has historically been the more common outcome because most properties cannot be physically divided without losing value. However, this has raised concerns about forced sales that dispossess owners — particularly in communities where property has been passed down through generations without clear title (known as heirs' property). The Uniform Partition of Heirs Property Act (UPHPA), adopted in over 20 states, provides protections for heirs' property owners, including the right of first refusal, mandatory independent appraisal, and a preference for partition in kind.

Equitable remedies are court-ordered actions that go beyond monetary damages to achieve justice in property disputes. Specific performance compels a party to complete a real estate contract as agreed — this is the preferred remedy in real estate because each parcel is considered unique and monetary damages are therefore inadequate. Injunctions prohibit a party from taking specified actions (such as continuing a nuisance or violating a restrictive covenant). Reformation allows a court to modify a contract or deed to reflect the parties' actual intent when a mutual mistake has occurred.

Recission cancels a contract entirely and restores the parties to their pre-contract positions. Courts may grant recission when a contract was induced by fraud, mutual mistake, duress, or undue influence. Quiet title actions, discussed in the previous lesson, are also equitable remedies that establish ownership rights. The availability of equitable remedies depends on the specific circumstances of each case and the court's discretion.