A recent Florida court decision cast a shadow on the lis pendens. Now, the 4th DCA has tried to fix its past decision.
In its recent decision in Ober v. Town of Lauderdale-by-the-Sea, the Florida appellate court is trying to correct an issue that came out of a previous decision in the same case (Ober 1) which held that a lis pendens was extinguished with the entry of a final judgment.
In Ober 1, the 4th District ruled that where a final judgment had been entered in a foreclosure case, which occurs after a lis pendens is filed, and a subsequent lien arises before the sale resulting from the final judgment, that lien will not be extinguished. That case looked at a code enforcement lien entered by the city after judgment. It was a long process, but a foreclosure sale finally occurred four years after judgment. This case represented a huge deviation from existing case law as to the lis pendens statute.
In its first decision, the final judgment extinguished the lis pendens and the city’s lien was valid. It’s decision on rehearing reversed that decision.
What is a Lis Pendens
A lis pendens is a legal notice. It’s defined by Florida Statute (48.23). Basically once it’s recorded it gives people constructive notice of issues such as a lawsuit related to the property. This is vital for prospective purchasers or lenders that may be interested in the property. For those that have an interest in property that is not of record, once a lis pendens is recorded they must assert their rights.
How did they correct it
Basically, on rehearing,the 4th DCA went back to a strict interpretation of the lis pendens statute and a standard understanding of a foreclosure lawsuit. A foreclosure doesn’t end at judgment. It’s an interim period before a sale.