When a lawsuit involves real estate in Texas, one of the most powerful procedural tools available to a plaintiff is the filing of a lis pendens. This notice alerts the public that the property is involved in litigation and effectively freezes the property's marketability.
But what happens when a lis pendens is improper, exaggerated, or tied to a weak lawsuit?
Texas law provides a remedy: expunction of a lis pendens. This procedure allows a property owner or interested party to ask the court to remove the notice and restore the property's marketability.
Understanding this process is critical for property owners, investors, and businesses involved in real estate disputes.
What Is a Lis Pendens?
A lis pendens (Latin for “pending lawsuit”) is a document filed in the county real property records to notify the public that a lawsuit affects title to a specific piece of real estate.
Under Texas law, a lis pendens is typically appropriate when a lawsuit involves:
- ownership of real property
- enforcement of a lien
- establishment of an interest in land
- quiet title claims
- specific performance of a real estate contract
Because title companies generally refuse to insure property subject to a lis pendens, the filing can effectively stop a sale or refinancing until the litigation is resolved.
The Problem: Misuse of Lis Pendens
While lis pendens can protect legitimate property claims, they can also be abused as a litigation tactic.
Common examples include:
- Filing a lis pendens in a dispute that does not actually affect title
- Using the notice to pressure settlement
- Recording it in contract disputes that seek only money damages
To address this problem, the Texas Legislature created a statutory procedure allowing courts to remove improper notices.
Texas Property Code § 12.0071 – Expunction of Lis Pendens
Texas law specifically provides a mechanism for removing a lis pendens from the public records.
Texas Property Code § 12.0071(c) provides:
“A party to the action who is affected by the notice of lis pendens may apply to the court to expunge the notice.”
The court must then determine whether the lis pendens was properly filed.
Under Texas Property Code § 12.0071(c)(1), the court shall order expunction if:
“the pleading on which the notice is based does not contain a real property claim.”
This means the lawsuit must actually seek relief that affects title to real property or an interest in real property.
Additional Grounds for Expunction
The statute provides several independent bases for removing a lis pendens.
A court must expunge the notice if:
1. The lawsuit does not assert a real property claim
If the lawsuit only seeks money damages, the lis pendens is improper.
2. The claimant fails to establish probable validity
Under Texas Property Code § 12.0071(c)(2), expunction is appropriate if:
“the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim.”
In other words, the plaintiff must show that the claim affecting the property has at least some likelihood of success.
3. Adequate relief can be secured by a bond
The statute also allows expunction if:
“the property owner files a bond that adequately secures the claimant for the amount of the claim.”
This option can be useful in high-value transactions where a lis pendens is blocking a closing.
Why Expunction Matters
A lis pendens can have immediate and severe consequences.
It can:
- prevent property sales
- block refinancing
- disrupt commercial transactions
- harm credit relationships
- create leverage in litigation
For property owners, expunction can restore marketability and remove a cloud on title.
For defendants in real estate litigation, filing a motion to expunge can also serve as an early strategic attack on weak claims.
The Procedure for Expunging a Lis Pendens
The general process typically involves:
- Filing a motion to expunge under Texas Property Code § 12.0071
- Setting a hearing before the court
- Presenting evidence regarding the validity of the underlying property claim
- Obtaining a court order directing the county clerk to remove the notice
Once the court signs the order, the clerk records the expunction, effectively clearing the property's title records.
Practical Example
Imagine a buyer sues a seller for breach of a real estate purchase contract, seeking only damages.
If the buyer files a lis pendens against the property but does not request specific performance, the claim may not actually affect title.
In that situation, the seller could file a motion to expunge, arguing that the lawsuit does not assert a legitimate real property claim.
If the court agrees, the lis pendens is removed and the property can be sold.
When to Speak With a Texas Real Estate Litigation Attorney
Lis pendens disputes often arise in cases involving:
- failed real estate transactions
- partnership disputes over property
- quiet title lawsuits
- construction and lien litigation
- inheritance and probate property disputes
Because the filing or removal of a lis pendens can dramatically affect a property's value and marketability, it is important to address these issues quickly and strategically.
Conclusion
A lis pendens can be a powerful litigation tool, but Texas law prevents it from being used unfairly.
Texas Property Code § 12.0071 provides property owners and defendants with an important remedy: the ability to ask a court to expunge an improper lis pendens and clear the property's title records.
Understanding this process can make the difference between a property being frozen in litigation and returning to the marketplace.
At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.
