Monday, July 30, 2012

A "backdoor" Lis Pendens

Last week I wrote that the registers of deeds association will be undertaking an update of the Massachusetts Deed Indexing Standards in the coming months.  One thing that prompted this was a paragraph in a recent unpublished Land Court decision regarding the recording of a certified copy of a complaint at the registry of deeds.  The name of the case and of the registry of deeds involved aren't relevant to my story so I'll leave them out.

The barest facts of the case are as follows: The parties disputed the ownership of marital real estate that was to be divided pursuant to a divorce decree.  One of the parties started a Land Court action regarding this real estate that was independent of the divorce case already pending.  Before any action could be taken in this new lawsuit, the initiating party recorded a certified copy of the complaint that launched the lawsuit at the registry of deeds.

The Land Court judge not only dismissed the case, but also ordered the complaint to be stricken from the records of the Registry of Deeds and that all mention of it, in marginal references and anywhere else, also be stricken.  As grounds for this order, the judge held that by recording the certified copy of the complaint, the plaintiff had essentially established a Lis Pendens on the property (notice of a suit regarding the property) and in doing so had created a cloud on the title.  Doing this without the judicial order required to establish a Lis Pendens was improper.

Many registries have taken a fairly liberal position regarding what may or may not be recorded, reasoning that merely recording a document doesn't enhance its legal significance.  Because of this case, however, I expect that we will become more rigorous in deciding what to allow on record.  

No comments: