LIS PENDENS – NATURE, MEANING & PURPOSE

Here’s an initial article about “Lis Pendens” for your reference.  I will add on to this post  to keep you posted on any development of my friend’s case to cancel this nuisance action by a relative who is after the property.   Take note that there are specific requirements needed by the Register of Deeds to annotate a Lis Pendens on a title, however, there are irregularities still being practiced by some municipalities …

NATURE, MEANING AND PURPOSE –

NOTICE OF LIS PENDENS

Section 76. Notice of lis pendens. No action to recover possession of real estate, or to quiet title thereto, or to remove clouds upon the title thereof, or for partition, or other proceedings of any kind in court directly affecting the title to land or the use or occupation thereof or the buildings thereon, and no judgment, and no proceeding to vacate or reverse any judgment, shall have any effect upon registered land as against persons other than the parties thereto, unless a memorandum or notice stating the institution of such action or proceeding and the court wherein the same is pending, as well as the date of the institution thereof, together with a reference to the number of the certificate of title, and an adequate description of the land affected and the registered owner thereof, shall have been filed and registered.

NATURE AND PURPOSE OF LIS PENDENS

Lis pendens literally means a pending suit

Doctrine that refers to the jurisdiction, power or control which a court acquires over a property involved in a suit, pending the continuance of the action, until final judgment

The purpose of lis pendens :

To protect the rights of the party causing the registration of the lis pendens
To advise third persons who purchase or contract on the subject property that they do so at their peril and subject to the result of the pending litigation

May involve actions that deal not only with title or possession of a property but also with the use and occupation of a property

The litigation must directly involve a specific property which is necessarily affected by the judgment

The notice of lis pendens is a notice to the whole world that a particular real property is in litigation. The inscription serves as a warning that one who acquires interest over litigated property does so at his own risk, or that he gambles on the result of the litigation over the property

A purchaser who buys registered land with full notice of the fact that it is in litigation between the vendor and third party stands in the shoes of his vendor and his title is subject to the incidents and results of the pending litigation

The filing of lis pendens in effect :

Keeps the subject matter of litigation within the power of the court until entry of final judgment so as to prevent the defeat of the latter by successive alienations

Binds the purchaser of the land subject of the litigation to the judgment or decree that will be promulgated thereon whether such purchaser is a bona fide purchaser or not

Doesn’t create a non-existent right or lien

Purpose of this rule is founded on public policy and necessity

EFFECT OF SUCH NOTICE

1. It keeps the subject matter of the litigation within the power of the court until the entry of final judgment so as to prevent the defeat of the latter by successive alienations

2. It binds the purchaser of the land subject of the litigation to the judgment or decree that will be promulgated thereon whether such purchaser is a bona fide purchaser or not

It is not correct to speak of it as part of the doctrine of notice, the purchaser pendent elite is affected not by notice but because the law doesn’t allow litigating parties to give to others, pending the litigation, rights to the property in dispute so as to prejudice the other party

NOTICE IS ONLY AN INCIDENT IN THE MAIN CASE; MERITS THEREOF UNAFFECTED

A notice of lis pendens is ordinarily recorded without the intervention of the court where the action is pending

It is but an incident in an action, an extrajudicial one. It doesn’t affect the merits thereof.

NOTICE NEED NOT BE ANNOTATED ON THE OWNER’S COPY

Annotation at the back of the original copy of the certificate of title on file with the RD is sufficient to constitute constructive notice to purchasers or other persons subsequently dealing with the same property

One who deals with property subject of a notice of lis pendens cannot invoke the right of a purchaser in good faith—neither can he acquire the rights better than those of his predecessor-ininterest

NOTICE OF LIS PENDENS—WHEN APPROPRIATE

1. Action to recover possession of real property
2. Action to quiet title thereto
3. Action to remove cloud thereon
4. Action for partition
5. Any other proceedings of any kind in court directly affecting the title to the land or the use or occupation thereof or the buildings thereon

NOTICE NOT PROPER IN THE FOLLOWING

1. Preliminary attachments
2. Proceedings for the probates of wills
3. Levies on execution
4. Proceedings for the administration of estate of deceased persons
5. Proceedings in which the only subject is the recovery of a money judgment

CONTENTS OF NOTICE OF LIS PENDENS

1. A statement of the institution of an action or proceedings
2. The court where the same is pending
3. The date of its institution
4. A reference to the number of certificate of title of the land
5. An adequate description of the land affected and its registered owner

PRINCIPLE OF PRIMUS TEMPORE, POTIOR JURE; EFFECT OF LIS PENDENS

The principle of primus tempore, potior jure gains greater significance in the law on double sale of immovable property
Reliance on the principle of constructive notice operates only such upon the registration of the notice of lis pendens
More fundamentally, a notice of lis pendens is only a warning to the prospective purchaser or incumbrancer that the particular property is in litigation and that he should keep his hands off the same, unless he intends to gamble on the results of the litigation

CARRY OVER OF NOTICE ON SUBSEQUENT TITLES

In case of subsequent transfers or sales, the RD is duty bound to carry over the notice of lis pendens on all titles to be issued

Act of RD in erasing notice of Lis Pendens is in plain violation of his duty, constitutes misfeasance in the performance of his duties for which he may be held civilly and even criminally liable for any prejudice caused to innocent third persons and cannot affect those who are protected by the notice inscribed in the original title.

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Thank you.

robert
Robert G. Sarmiento Properties
Professional Affiliation :
Philippine Association of Real Estate Boards
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