What Is Lis Pendens Under the Texas Property Code?

A lis pendens in Texas is a notice recorded with the county clerk that tells the public a lawsuit is pending over a specific piece of real property. Authorized by Section 12.007 of the Texas Property Code, it does not transfer ownership and does not create a lien. What it does is put every future buyer, lender, and title insurer on notice that the property’s title could change based on how the lawsuit ends, and that warning alone is usually enough to stop a sale or a refinance in its tracks.¹

What a Lis Pendens Does to the Property

Once properly recorded and indexed, a lis pendens is “notice to the world of its contents” under Texas Property Code Section 13.004. Anyone who buys the property or takes a lien against it after that moment is legally presumed to know about the lawsuit and cannot later claim to be an innocent purchaser.² The flip side is also written into the statute: if no lis pendens has been filed, a buyer who pays fair value without actual or constructive knowledge of the dispute takes the property free of whatever the court later decides.

The practical effect is severe. Title insurance companies routinely refuse to issue policies on property with an active lis pendens, and without a title policy almost no lender will fund a mortgage. Most buyers walk away. For the party who filed the notice, this creates enormous leverage: even if the case drags on for years, the owner typically cannot sell, refinance, or borrow against the property while the notice sits on the record.

The Texas Supreme Court confirmed that leverage in Sommers v. Sandcastle Homes, Inc., holding that purchasers who acquire property while a lis pendens is in effect take ownership subject to the lawsuit’s outcome.³

When a Lis Pendens Can Be Filed

Not every lawsuit that happens to involve a property owner qualifies. Section 12.007(a) limits lis pendens filings to three categories of cases:

Disputes over title to real property
Actions to establish an interest in real property
Enforcement of a lien or other encumbrance against real property

Eminent domain proceedings also qualify. The party filing must be seeking affirmative relief, meaning asking the court to award them something rather than simply defending.

General contract disputes, personal injury claims, and unsecured debt collection do not support a lis pendens, even when the defendant owns real estate. A creditor suing on an unsecured promissory note, for instance, cannot record a lis pendens against the debtor’s home just because the debtor happens to own it. Courts regularly strike these filings, and the filer can face substantial liability for recording one without a legitimate basis.

What the Filing Must Contain

The lis pendens document must be signed by the filing party, their agent, or their attorney, and it must include five pieces of information:

The style and cause number of the lawsuit, if a number has been assigned
The court where the lawsuit is pending
The names of all parties
The kind of proceeding
A description of the property affected by the lawsuit

The statute calls for a “description of the property affected” rather than a formal legal description, but a metes-and-bounds description or a reference to a recorded plat is the safer approach. A vague or incomplete description can make the filing defective and unenforceable against third parties.¹

The notice is recorded with the county clerk in every county where any part of the property sits. The clerk indexes it under each party’s name, which is how title examiners find it during a search.

The Three-Day Service Requirement

Within three days of recording, the filing party must serve a copy of the notice on every other party to the lawsuit who has an interest in the affected property.¹ This is a separate requirement from the recording itself. Missing the deadline does not necessarily void the constructive notice created by recording, but it opens a procedural angle that opposing counsel can use in a motion to remove the filing.

Timing

Record the notice as soon as the lawsuit is filed. If the property changes hands before the lis pendens reaches the public record, the new owner may have a strong argument that they bought without notice. Texas courts have held that a lis pendens protects interests existing at the time of filing, so a delay can undermine the entire point of the filing.

Lis Pendens in Federal Court

When a Texas real property dispute is litigated in federal court, 28 U.S.C. § 1964 requires the filing party to follow the same state recording procedures to achieve constructive notice.⁴ A lis pendens that sits only on the federal docket, without being recorded at the county level, does not provide constructive notice under Texas law.

How to Remove a Lis Pendens

Texas gives property owners two separate statutory routes to clear a lis pendens from the record. They address different problems.

Expunction Under Section 12.0071

Expunction is the remedy when the lis pendens should never have been filed, or when the person who filed it cannot show their property claim has merit. A property owner or any interested person can move the court to expunge the notice on two grounds: the underlying lawsuit does not involve a real property claim, or the claimant cannot show by a preponderance of the evidence that the claim is probably valid.⁵ The court may require the prevailing party to post a bond or other undertaking in an amount it sets.⁶

Once the court orders expunction and the certified order is recorded in the deed records, the lis pendens becomes void.

Cancellation Under Section 12.008

Cancellation is for a different situation: the underlying claim may be legitimate, but the court decides the filer’s interests can be adequately protected by money rather than a cloud on the title. Any interested party can move for cancellation.⁷

If the court conditions cancellation on a cash deposit, the amount must equal the judgment being sought plus estimated interest and costs. If the court accepts a surety bond instead, the bond must equal twice the judgment amount and must be backed by at least two sureties the court approves. The party seeking cancellation must give the lis pendens filer’s attorney at least two days’ notice before submitting the bond for approval.⁷ The numbers can be large, but for an owner who needs to sell or refinance before the case ends, cancellation may be the only path.

What a Wrongful Filing Costs

Filing a lis pendens without a legitimate basis is expensive. Texas Civil Practice and Remedies Code Section 12.002 makes it unlawful to knowingly file a fraudulent lien or claim against real property with the intent to cause financial harm. A violator is liable for the greater of $10,000 or actual damages, plus court costs, reasonable attorney’s fees, and exemplary damages set by the court.⁸ The $10,000 floor applies even when provable harm is small.

A wrongful lis pendens can also support a common-law slander of title claim. Courts distinguish between a filing that is merely procedurally sloppy and one that is substantively wrongful because the filer knew there was no enforceable claim against the property. Only the latter supports slander of title. The burden sits on the filer to show the underlying lawsuit genuinely involves a claim to the property, and where that connection is thin or absent, courts have not been forgiving of filers who used the notice as leverage in an unrelated fight.

1
State of Texas. Texas Property Code 12-007 – Lis Pendens
2
State of Texas. Texas Property Code 13-004 – Effect of Recording Lis Pendens
3
Justia Law. Sommers v Sandcastle Homes Inc
4
Office of the Law Revision Counsel. 28 US Code 1964 – Constructive Notice of Pending Actions
5
State of Texas. Texas Property Code Chapter 12 – Recording of Instruments
6
State of Texas. Texas Property Code 12-0071
7
State of Texas. Texas Property Code 12-008 – Cancellation of Lis Pendens
8
State of Texas. Texas Civil Practice and Remedies Code 12-002 – Liability