One of the most important ownership rights in this country is the ownership of one’s house. The old phrase “A Man’s Home is his Castle,” was born from the basic concept that ownership of real estate is the hallmark of freedom.
Contrast the above concept with the other, important concept: we all live in this world together. In living together, we necessarily engage in conduct that requires us to act and react to events external from our personal dominions.
These two concepts intersect at various times, but one place where they come into direct contact is when the law touches upon a person’s home. This may come about when one sells or buys a house; gets injured on someone’s property; obtains or gives a mortgage on the house; leases part or all of a building; or invests in commercial or residential property.
Various issues may develop into litigation concerning real estate matters, including:
- Contracts: Litigation around contracts to buy or sell real estate can arise.
- “Pushy neighbors”: Disputes over property lines, construction or zoning.
- Auctions: Transactions and litigation surrounding the purchase of residential or commercial property, condominium units, or cooperative apartments at foreclosure auctions.
- Fraud: Mortgage fraud, Deed theft, or breaches of confidential relationships.
- Specific performance: Forcing the seller to close title even though he doesn’t want to.
- Partition and Sale: When co-owners of the real estate no longer agree about ownership or management of the property, they can seek a sort-of “divorce” by bringing a partition-and-sale action to have the court order the property sold and the net proceeds divided.
Notice of Pendency, an overview
When litigation surrounding real estate is involved, there is generally a need or desire to file a “Notice of Pendency” (or commonly known as a “Lis Pendens”). This is a notice to any potential purchasers or mortgagees that there is litigation involving the property which may affect its “title, use or enjoyment.” This provides protection that the owner of the real property will not sell, transfer, mortgage, or dispose of it, thus leaving the suing party high and dry, before the litigation is over.
Anyone who decides to buy or give a loan with the property as collateral will think twice, knowing that someone out there is making a claim against the property. This can be a very powerful tool, given that owners of property usually have an inalienable right to sell their property as they choose.