Section Review

Private land-use restrictions under the lis pendens statute

William V. Hovey is a partner in the law firm of Hovey & Koenig LLP of Boston and Duxbury, is past president of the Massachusetts Conveyances Association and past chairman of the Title and Title Insurance Committee of the Boston Bar Association. Copyright 2004 by William V. Hovey.

History of lis pendens statute

As the Supreme Judicial Court reminded us in Wolfe v. Gormally, 440 Mass. 699, 802 N.E. 2d 64 (Jan. 16, 2004) the purpose of the lis pendens statute is to remedy a harsh common law rule by ensuring that prospective buyers have the benefit of recorded notice of certain lawsuits. Under the common law, if the subject property was sold "lis pendens," i.e., while the suit was pending, a buyer without notice of the litigation was nonetheless bound by the judgment.

The statute, first enacted in 1877, ameliorated the harsh effects of the common law rule by providing that buyers acquiring an interest in property subject to suit were not bound by the judgment unless a memorandum of lis pendens was filed in the registry of deeds before the acquisition. The statute thus allowed courts to retain control over the subject matter of the litigation while the action was pending, and protected prospective buyers by enabling them to obtain notice of pending litigation affecting title through the registry of deeds in the same way that they searched for record encumbrances. Until the 1985 amendment to chapter 184, section 15, a litigant could record a lis pendens in any case affecting the title to real property or its use and occupation without court approval or notice to the other party. The purpose of St. 1985, c. 809 was to add procedural safeguards to the formerly unfettered right to record a lis pendens. As a result of the amendment, plaintiffs are now required to obtain judicial authorization before recording a memorandum of lis pendens, which "any party aggrieved" may contest.

The scope of the statute, defined in two seemingly conflicting clauses, is facially ambiguous. The first paragraph of General Laws chapter 184, section 15 states a legal proceeding that affects the title to real property or the use and occupation thereof is only effective against "the parties thereto, their heirs and devisees" and persons with actual notice of the proceeding, unless a memorandum of lis pendens is recorded. In contrast, the second paragraph appears to confine the statute's scope to a much narrower class of claims in providing that a lis pendens may be recorded only if a judge makes a finding that the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof. The relevant language was retained when the statute was rewritten in 2002.

As to statutory construction, the Wolfe court pointed out that where a statute contains seemingly conflicting language, a court must interpret it, so as to make it an effectual piece of legislation in harmony with common sense and sound reason, and, as a result, when the legislature added the second paragraph in 1985, it left intact the statute's broad scope set forth in the first paragraph. The court added that rewriting the statute in 2002, the legislature not only retained the "affecting the title" language in the first paragraph, but added it in other paragraphs. For example, the statute now contains a mechanism for expedited removal of an unjustified lis pendens, including dismissal of frivolous claims supporting an approved lis pendens. The language of this section is especially important, because it now allows a judge to dissolve a lis pendens if the judge determines that the action does not affect the title to the real property or the use and occupation thereof or the building thereon (If the legislature had intended to restrict the issuance of a lis pendens to claims "of a right to title," why did the legislature mandate dissolution of a lis pendens where claims do not "affect the title?"). The language of the 2002 version of the statute seems to be persuasive evidence that the language of section 15 (b) (formerly second paragraph) should be read consistently with the other statutory provisions: section 15 (a) (formerly first paragraph) provides that, without a recorded lis pendens, cases "'affecting" title are binding only on "the parties" to the proceeding; section 15 (c) requires the dissolution of a recorded lis pendens where the case does not "affect" title; and section 15 (f) provides that a zoning or other regulatory action is not a proceeding that "affects title."

The Wolfe court concluded that the relevant statutory history and the overall statutory scheme strongly suggest that the intent of the 1985 amendment was to give "any party aggrieved" some procedural protection, and not to limit the statute's remedial reach, and that absent a clear expression of the legislative intent in 1985 to radically change the scope of the statute, which broadly applied to all suites affecting the title to real property, a court may not presume that the legislature intended to limit the lis pendens protection only to cases involving claims of "a right to title."

And the court added:

Furthermore, the "literal import" of the phrase in the second paragraph is inconsistent with the fundamental remedial purpose of the statute: to "ensure [ ] that a prospective third-party transferee can, with the exercise of reasonable prudence, acquire information relevant to a decision whether to consummate the transaction." The existence of a dispute over the scope of restrictive covenants affecting the subject property can certainly be relevant information for a prospective purchaser. However, literal construction of the second paragraph would place litigation over encumbrances outside the scope of the statute and expose buyers without notice of the litigation to the common-law lis pendens rule. To harmonize the two conflicting provisions of the statute with its remedial purpose, a proper construction must disregard the "literal import" of the language of the second paragraph and recognize that the statute's broad scope is still defined, as it always has been, by the first paragraph. Properly construed, the statute continues to apply to all claims "affect[ing]" title or use and occupation of property; no change was intended by contradictory language in the second paragraph. (Emphasis added.)

Facts in Wolfe v. Gormally

The fact pattern in this lis pendens case was not unusual. It involved a common scheme of restrictive covenants imposed on a subdivision and the subsequent owner of some of the lots seeking to develop the same allegedly in violation of the restrictions. Certain landowners brought an action in the Land Court to enforce these restrictions and obtained an approval of their memorandum of lis pendens because the underlying action "affected" the title to the lots in question. The Land Court found that the "subject matter or action constitutes a claim of a right to title to real property or the use and occupation thereof," approved the lis pendens and denied the developer's motion to dissolve the lis pendens. The developer petitioned for interlocutory relief to a single justice of the Appeals Court and the single justice dissolved the lis pendens. The landowners appealed to a panel of the Appeals Court and then filed an amended complaint. The developer moved for dismissal of the appeal as being moot, which motion was denied with "leave to raise the mootness issue in their briefs." The SJC granted the landowners application for direct appellate review.

Holding in Wolfe v. Gormally

The SJC set the tone of the decision by stating:

Because we conclude that the record title of real estate should reflect the pendency of any action to enforce a properly imposed plan of restrictive covenants, where such an action "affects the title to real property or the use and occupation thereof" as that phrase is used in the first paragraph of the statute, [G.L. c.184 ß 15], we affirm the issuance of the lis pendens by the Land Court.

… A claim that "affect[s] title" has been defined as a claim brought on a plaintiff's own behalf to enforce "some interest in the real estate," including a lien or an encumbrance. Here the landowners seek to enforce, on their behalf, the restrictive covenants intended to run with the land in the subdivision. Because these restrictive covenants are both an "interest in the real estate," enforceable by the landowners, and an "encumbrance" on the developer's title, the landowners' claim "affects" the developer's title and is within the scope of G. L. c. 184, ß 15. The record title of real estate should reflect the pendency of this action so as to give notice to prospective purchasers of the contested lots that the proposed use of those lots is subject to active legal challenge. The Land Court thus properly approved the memorandum of lis pendens. (Citations omitted, emphasis added).

Life after Wolfe v. Gormally

Conveyancers can now certify titles to land subject to private land use restrictions without a caveat as to possible litigation relative to the same. However, conveyancers still must cope with public land use regulations that are expressly excluded from chapter184. section 15, i.e.,

(f) For the purposes of this section, a proceeding arising under a statute, ordinance or by-law regulating land use, including without limitation one related to zoning or wetlands regulation, is not a proceeding that affects title to real property or the use and occupation thereof or the buildings thereon.

This exception was apparently included as a codification of Siegemund v. Building Commissioners of City of Boston, 263 Mass. 212, 160 N.E. 795 (1928), an unfortunate decision that held that a petition for mandamus to enforce zoning laws is not within the statute, since it did not involve the title to or an interest in real estate. The conclusion in Siegemund is quite unbelievable since the purpose of any zoning or wetlands ordinance is to restrict, limit or otherwise "affect" the "use" of certain lands. And shouldn't the buyer of land subject to litigation by an abutter claiming a zoning violation by the seller be entitled to notice of such proceeding?

Here is a suggested amendment to the statute by striking paragraph (f) and substituting the following therefor:

(f) For the purposes of this section, a proceeding (i) arising under a statute, ordinance or by-law regulating land use, including without limitation one related to zoning or wetlands regulation, or (ii) affecting land subject to privately imposed restrictions is a proceeding that affects title to real property or the use and occupation thereof or the buildings thereon."

In addition, such an amendment should allow both the plaintiff and the defendant in a proceeding affecting title or land use to obtain a recordable lis pendens.

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