If you work in the Pennsylvania real estate market, chances are you may have encountered the lis pendens doctrine. Lis pendens is a latin term that roughly translates to “notice of a pending legal action”. As its translation indicates, the purpose of a lis pendens is to give notice to a third-person (typically a potential buyer) that a certain parcel of real estate is subject to a pending lawsuit and that any interest a buyer acquires in that real estate will be subject to the result of the pending legal action.

In its most practical sense, a lis pendens is a written filing indexed against a parcel of real estate such that any potential buyer will be made aware that there is an ongoing dispute relating to title of the property. This effectively precludes a transfer of real property since any potential buyer would then own the property subject to the cloud on title.

Lis pendens is a powerful tool which can be utilized in civil litigation pertaining to a claim against title to real estate.  The filing of a lis pendens and recording that lis pendens against a parcel of property puts the world on notice that the owner may not have clear title, and thus, may be unable to convey same.  A lis pendens effectively precludes transfer of the real property as any buyer must take subject to the cloud on title.  Of course, a lis pendens must be supported by a writ of summons or a civil action complaint relating to real property.

Curiously, a lis pendens is not an available tool in an Orphans’ Court proceeding.  Accordingly, a lis pendens cannot be utilized to place the world on notice of a claim against an administrator or executor where a transfer of property is made in connection with estate administration.  Nor can it be used to place the world on notice of the claim relating to that transfer or a defect in their authority to effectuate same.  Thus, the lis pendens is not an effective tool to  preclude further transfer or encumbrance by mortgage or other debt instrument. 

Although lis pendens is not available, the same purpose can be accomplished under the Orphans’ Court rules, provided a Petition for Citation has been filed with respect to the administrator’s activity.  Pursuant to 20 Pa. Cons. Stat. §3359, any pleading in Orphans’ Court may be recorded in the Recorder of Deeds Office with reference to the property in question.  While little case law is available to address the impact of such filing, the practical effect of providing notice of any existing claim to title may be satisfied.

Antheil Maslow and MacMinn is experienced in matters of estate administration and litigation pertaining to estate matters.