A lis pendens in New Jersey is a notice, recorded in the county land records, that a lawsuit is pending which claims an interest in a specific piece of real estate. It is not a lien and not a judgment, but it warns every future buyer, lender, and title insurer that whoever takes the property does so subject to the outcome of the case. In practice, that warning stops most sales and refinancings cold until the notice is discharged or the underlying case ends.
What the Notice Does to the Property
The legal engine behind a lis pendens is constructive notice. Under N.J.S.A. 2A:15-7, once the notice is on file, anyone who later buys the property, lends against it, or acquires any interest in it is treated as though they knew about the lawsuit and is bound by whatever judgment the court eventually enters.1Justia. New Jersey Code 2A:15-7 – Filed Notice; Effect as to Persons Claiming Interest in Real Estate Affected by Notice The reverse is also true. Under N.J.S.A. 2A:15-8, if no lis pendens is filed, a good-faith buyer or lender without actual knowledge of the suit takes free of it.2Justia. New Jersey Code 2A:15-8 – Rights of Bona Fide Purchasers, Mortgagees or Lienors Before Notice
Nothing in the statute technically forbids selling or mortgaging the property while a lis pendens is recorded. The problem is that no one will play along. Title companies find the notice on any routine search and typically refuse to insure title until it is cleared. Without title insurance, institutional lenders will not close a purchase mortgage, a refinance, or a home equity loan, because they cannot confirm they will hold a first-priority lien. A cash buyer can technically close, but they take the property subject to the pending case, which means a loss for the plaintiff could unwind or burden the purchase. Sellers under contract face a further problem: most New Jersey real estate contracts require delivery of clear, marketable title at closing, and a lis pendens can put the seller in breach if it is not resolved by the closing date.
The New Jersey Supreme Court has kept the reach of the notice tied to its terms. In Trus Joist Corp. v. Treetop Associates, Inc., the court held that a lis pendens protects only the party who filed it and only as to the claims described in the notice itself, telling the public “that a suit is pending against a certain party, affecting certain lands in a certain way” and nothing more.3Justia. Trus Joist Corp v Treetop Associates Inc
When a Lis Pendens Can Be Filed
Not every lawsuit involving a property owner qualifies. N.J.S.A. 2A:15-6 allows a lis pendens only in an action that seeks to enforce a lien on real estate or to affect the title to real estate or a lien or encumbrance on it. The statute expressly bars filing one in an action “to recover a judgment for money or damages only.”4Justia. New Jersey Code 2A:15-6 – Written Notice of Pendency of Action; Contents
That line does real work. A contractor with a properly filed construction lien can record a lis pendens in a suit to enforce it. A homeowner suing for specific performance to force a sale can file one. A mortgage lender starting a foreclosure can file one. A creditor suing on an unpaid personal loan cannot, even if the debtor owns valuable New Jersey real estate.
The notice itself must contain the title of the action, the general object of the action, and a description of the affected property, and it is recorded with the county clerk or register of deeds and mortgages in the county where the property is located. The complaint has to be on file with the court before the notice is recorded; there is no procedure for filing the notice first.4Justia. New Jersey Code 2A:15-6 – Written Notice of Pendency of Action; Contents
Service and Timing Rules
New Jersey splits lis pendens cases into two tracks with different procedural rules.
The first track covers actions where the plaintiff’s claim arises from a written instrument executed by the defendant that identifies the property or appears in the property’s title records. Mortgage foreclosures are the textbook example. The lis pendens is effective on filing, and the statute imposes no separate service deadline for the notice itself.1Justia. New Jersey Code 2A:15-7 – Filed Notice; Effect as to Persons Claiming Interest in Real Estate Affected by Notice
The second track covers everything else: ownership disputes, boundary claims, specific performance actions, and other cases not grounded in a recorded written instrument. For these, the plaintiff must serve the defendant with a copy of both the lis pendens and the complaint within three days after recording the notice.1Justia. New Jersey Code 2A:15-7 – Filed Notice; Effect as to Persons Claiming Interest in Real Estate Affected by Notice Missing that window gives the defendant a procedural basis to attack the filing right away.
How to Get a Lis Pendens Removed
There are three realistic ways to clear a lis pendens off the record. Which one fits depends on the type of case and the strength of the underlying claim.
Motion to Discharge and the Probability Hearing
For cases in the second track (those not based on a recorded written instrument), the defendant or anyone with an interest in the property can move the court for a determination of whether the plaintiff is likely to prevail. This is the fastest tool in the statute. It is not a mini-trial on the merits. The court decides whether there is a sufficient probability that the plaintiff will obtain a final judgment in their favor, and the plaintiff carries the burden of proof. The court must rule within 10 days after the hearing. If the plaintiff cannot show enough probability of success, the court must order the lis pendens discharged immediately.1Justia. New Jersey Code 2A:15-7 – Filed Notice; Effect as to Persons Claiming Interest in Real Estate Affected by Notice
For first-track cases based on a recorded written instrument, there is no probability hearing. The lis pendens stays in place through the litigation.
Negotiated Release
If the parties can settle, the filer executes and records a release of the lis pendens with the county clerk. Settlement often involves payment, a deed change, or some other resolution of the claim. This avoids a court hearing and clears title as soon as the release is recorded.
Resolution of the Underlying Case
Dismissal or a favorable judgment for the property owner ends the legal basis for the notice, and it can be expunged from the record. The drawback is time. Lawsuits run for months or years, and the property is effectively frozen throughout.
Procedural Defects
Some lis pendens filings can be attacked without reaching the merits. Missing the three-day service deadline in a second-track case, filing a notice in a suit that seeks only money damages, or omitting a proper property description can all be grounds for removal on their own.
When a Filing Was Improper
Filing a lis pendens without a qualifying claim carries risk for the filer. Courts can order the notice removed and may impose sanctions, including attorney fee awards, when the filing was used as pressure rather than to protect a real property interest. The statutory requirement that the action affect title, a lien, or an encumbrance is the built-in test: a money case does not qualify.4Justia. New Jersey Code 2A:15-6 – Written Notice of Pendency of Action; Contents
A property owner harmed by a wrongful filing may consider a slander of title claim, but the availability of that remedy is unsettled in New Jersey. A 2022 appellate decision noted that “it is not at all certain that the common law would authorize a claim for damages caused by an impermissible notice of lis pendens,” since the litigation privilege generally protects statements made in judicial proceedings. Whether damages are recoverable in a given case depends on the specific facts, and an attorney can evaluate whether the litigation privilege forecloses the claim.
Getting an Attorney Involved
The deadlines built into the statute reward moving quickly. The three-day service window for second-track cases and the 10-day court decision deadline on a probability motion both work against delay. A property owner served with a lis pendens should have counsel review the notice and the underlying complaint for procedural defects, evaluate the strength of the filer’s claim, and prepare the motion to discharge where one is available.
On the other side, a party considering filing a lis pendens needs to be sure the action genuinely affects title, a lien, or an encumbrance, that the complaint is on file first, and that the notice contains the required title, object, and property description. A filing that does not qualify can be discharged and can expose the filer to sanctions and fee-shifting.