A lis pendens can be a powerful litigation tool. It can also become a strategic problem very quickly when it is filed in the wrong case, recorded too late, drafted carelessly, or left sitting in the public record without a plan.
In general terms, a lis pendens is not just paperwork. It is a public notice that litigation may affect title to real property. That notice can change how buyers, lenders, title insurers, and opposing parties behave while the case is pending. The U.S. Department of Justice describes it as a device that places potential purchasers or lenders on notice that the property is the subject of litigation, and the Supreme Court has likewise explained that it affects an owner’s ability to sell or finance the property even though it does not create a new property right by itself (DOJ manual; Connecticut v. Doehr).
If you want a broader foundation first, it may help to start with this overview of how recorded litigation notices affect deals, leverage, and title.
In this post, you’ll learn five common lis pendens mistakes that often create avoidable pressure points in real estate litigation, why those mistakes matter strategically, and where an attorney’s case-specific judgment can make a major difference.
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One of the biggest strategic mistakes is assuming that any dispute involving real estate supports a lis pendens.
That is not how most statutes work. In California, for example, a party may record a notice of pendency of action only if the action asserts a real property claim, and a court may expunge the notice if the pleading does not actually contain one or if the claimant cannot establish the probable validity of that claim (Cal. Code Civ. Proc. §§ 405.20, 405.31, 405.32; recordation provisions). In New York, courts repeatedly describe a notice of pendency as an “extraordinary privilege” because it can impair marketability before any merits determination, which is one reason courts look closely at whether the underlying claim truly affects title, possession, use, or enjoyment of the property (Matter of Sakow; New Planet Energy Dev., LLC v. MBC Contrs., Inc.).
If the underlying lawsuit is really about money damages, business fallout, breach issues, or some collateral dispute, the lis pendens can become vulnerable almost immediately. That shifts momentum to the other side.
Instead of putting useful pressure on the property, the notice may invite: