O.C.G.A. § 44-14-610 (2019)

Annotations

Law reviews. For annual survey of zoning and land use law, see 58 Mercer L. Rev. 477 (2006).

For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010).

JUDICIAL DECISIONS Lis pendens may not be predicated upon action which seeks merely to recover money judgment. Rather, its purpose is to notify prospective purchasers that the property in question is directly “involved” in a pending suit, in the sense that the suit seeks some relief respecting that particular property. Evans v. Fulton Nat’l Mtg. Corp., 168 Ga. App. 600, 309 S.E.2d 884, 1983 Ga. App. LEXIS 2863 (1983). In an action seeking to rescind a contract or sale of a residence based on fraud, the trial court properly ordered the removal of the notice of lis pendens erroneously filed by plaintiff against other property of the defendant. Quill v. Newberry, 238 Ga. App. 184, 518 S.E.2d 189, 1999 Ga. App. LEXIS 760 (1999). A lis pendens becomes effective upon filing in the office of the superior court clerk. Kennedy v. W.M. Sheppard Lumber Co., 261 Ga. 145, 401 S.E.2d 515, 1991 Ga. LEXIS 103 (1991). Lis pendens not improper when filed in regular course of proceeding involving real property. - Filing of notice of lis pendens cannot be said to be improper when such notice is filed in regular course of proceeding involving real

property to which notice refers. Ferguson v. Atlantic Land & Dev. Corp., 248 Ga. 69, 281 S.E.2d 545, 1981 Ga. LEXIS 914 (1981). Lis pendens not proper for investment right. - Right of first refusal to invest in a limited liability company’s development of real estate held by an LLC member was not a sufficient interest for the filing of a lis pendens because the member’s interest in the LLC was a right to invest in the development of real estate, which was an interest in personalty, not an interest in real estate. Meadow Springs, LLC v. IH Riverdale, LLC, 286 Ga. 701, 690 S.E.2d 842, 2010 Ga. LEXIS 225 (2010). Cancelling notice of lis pendens. - Trial court erred in granting motion to cancel lis pendens based on merits of underlying claim. Scroggins v. Edmondson, 250 Ga. 430, 297 S.E.2d 469, 1982 Ga. LEXIS 1255 (1982). A court may order the removal of a lis pendens not entitled to be recorded, but such action is generally preceded by a motion to cancel the lis pendens. Kennedy v. W.M. Sheppard Lumber Co., 261 Ga. 145, 401 S.E.2d 515, 1991 Ga. LEXIS 103 (1991).

Trial court did not err in failing to cancel, sua sponte, a lis pendens. Kennedy v. W.M. Sheppard Lumber Co., 261 Ga. 145, 401 S.E.2d 515, 1991 Ga. LEXIS 103 (1991). Because a federal lawsuit seeking to restore the owners’ land to its original condition and to address changes in the flow of water underneath the land “involved” the land for purposes of a lis pendens notice under O.C.G.A. § 44-14610, the trial court properly denied a bank’s motion to cancel the lis pendens in whole or in part. Colony Bank Southeast v. Brown, 275 Ga. App. 807, 622 S.E.2d 7, 2005 Ga. App. LEXIS 1014 (2005), cert. denied, No. S06C0411, 2006 Ga. LEXIS 193 (Ga. Feb. 27, 2006). Although a trial court improperly considered the merits of certain out-of-state litigation in determining that a lis pendens required cancellation, the cancellation was upheld as the out-of-state court no longer had subject matter jurisdiction over the Georgia property. Boca Petroco, Inc. v. Petroleum Realty II, LLC, 292 Ga. App. 833, 666 S.E.2d 12, 2008 Ga. App. LEXIS 663 (2008), aff’d, 285 Ga. 487, 678 S.E.2d 330, 2009 Ga. LEXIS 303 (2009). A lis pendens concerning real property in Georgia alleged to be involved in litigation in Florida should have been involuntarily cancelled. For there to be a valid lis pendens, the court before which the underlying litigation was filed had to have subject matter jurisdiction, and the Florida court lacked subject matter jurisdiction over the Georgia property. Petroleum Realty II v. Boca Petroco, Inc., 292 Ga. App. 896, 666 S.E.2d 49, 2008 Ga. App. LEXIS 729 (2008), aff’d, 285 Ga. 487, 678 S.E.2d 330, 2009 Ga. LEXIS 303 (2009). Trial court properly removed a notice of lis pendens placed on certain real property that was the subject of a suit brought by a property investment company against various related business entities asserting claims for breach of contract, fraud, punitive damages, attorney’s fees, and declaratory judgment as the related business entities obtained summary judgment, which thereby entitled the entities to cancellation of the lis pendens notice. Triple Net Props., LLC v. Burruss Dev. &

Constr., Inc., 293 Ga. App. 323, 667 S.E.2d 127, 2008 Ga. App. LEXIS 931 (2008). Trial court erred in cancelling a record notice of lis pendens because it was alleged that the subject property was fraudulently transferred by a former partner to defeat the claims of the plaintiff and that the transfer should be set aside; thus, it could not be said that the subject property was not involved in the lawsuit. Meljon v. Sonsino, 325 Ga. App. 719, 753 S.E.2d 456, 2014 Ga. App. LEXIS 59 (2014), cert. denied, No. S14C0850, 2014 Ga. LEXIS 691 (Ga. Sept. 8, 2014). Lis pendens as notice. - With respect to an objection to the debtor’s motion to sell property free and clear of liens and other interests, one objector’s claimed interest in a road was resolved by a state court order because the objector had actual and constructive knowledge of the state court litigation and the claims asserted therein by virtue of two lis pendens filed, and the objector’s president’s actual knowledge. In re Flyboy Aviation Props., LLC, 501 B.R. 828, 2013 Bankr. LEXIS 4533 (Bankr. N.D. Ga. 2013). Definition of “involved.” - The word “involved” as used in O.C.G.A. § 44-14610 refers only to the realty actually and directly brought into litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property. Kenner v. Fields, 217 Ga. 745, 125 S.E.2d 44, 1962 Ga. LEXIS 377 (1962); Hill v. L/A Mgt. Corp., 234 Ga. 341, 216 S.E.2d 97, 1975 Ga. LEXIS 1126 (1975); Jay Jenkins Co. v. Financial Planning Dynamics, Inc., 256 Ga. 39, 343 S.E.2d 487, 1986 Ga. LEXIS 690 (1986); South River Farms v. Bearden, 210 Ga. App. 156, 435 S.E.2d 516, 1993 Ga. App. LEXIS 1110 (1993). An action for wrongful foreclosure against a bank by the grantors of security deeds was a classic example of a suit in which real property was “involved” within the meaning of O.C.G.A. § 44-14-610. Moore v. Bank of Fitzgerald, 266 Ga. 190, 465 S.E.2d 445, 1996 Ga. LEXIS 42 (1996). Only parties to pending suit must be listed in notice. - While O.C.G.A. § 44-14-610 does not explicitly state that only parties to the pending suit must be

listed in the notice, if the purpose of O.C.G.A. § 44-14-610 is to notify “persons who are not parties to a pending suit” of the binding effect of any judgment or decree rendered therein, then “parties” as used in O.C.G.A. § 44-14-610 must relate only to actual parties to the pending suit. FDIC v. McCloud, 478 F. Supp. 47, 1979 U.S. Dist. LEXIS 9236 (N.D. Ga. 1979). Failure to file notice of suit outside county does not affect second action within county. - The failure to file a lis pendens notice in one county as to an action in a second county has no effect on the right, or lack of right, of a complainant to a contractor’s lien against property in the first county. Grand Atlanta Corp. v. Chenggis, 142 Ga. App. 375, 235 S.E.2d 779, 1977 Ga. App. LEXIS 1621 (1977). Litigation pending outside of Georgia involving Georgia property. - Lis pendens cannot be filed in Georgia to give notice of litigation pending outside of Georgia that involves the Georgia property. Thus, notices of lis pendens were invalid because a Florida court lacked subject matter jurisdiction over the properties located in Georgia. Boca Petroco, Inc. v. Petroleum Reality II, LLC., 285 Ga. 487, 678 S.E.2d 330, 2009 Ga. LEXIS 303 (2009). Lis pendens notice unnecessary if lien claim notice properly filed. - A notice of a claim for lien properly and timely filed and recorded performs the function of notifying all parties of the claim of lien, and a notice of lis pendens under O.C.G.A. § 44-14-610 is neither necessary nor applicable. Grand Atlanta Corp. v. Chenggis, 142 Ga. App. 375, 235 S.E.2d 779, 1977 Ga. App. LEXIS 1621 (1977). Because the lis pendens was filed when defendant did not have record title to the land, even though defendant’s financing arrangement included a wrap around provision containing defendant’s deed to secure debt, the lis pendens filed after defendant’s warranty deed was outside the chain of title and did not

constitute constructive notice to a purchaser. Marietta Recovery Group, Inc. v. Financial Properties Developers, Inc., 256 Ga. 238, 347 S.E.2d 596, 1986 Ga. LEXIS 797 (1986). Buyer who purchases land pending action subject to judgment if lis pendens filed. - The pending action seeking to declare plaintiff’s deed null and void is general notice to all the world, provided notice of the pending suit is filed on the lis pendens docket in the office of the clerk of the superior court where the land lies, and one who purchases the property pending the suit would be affected by the decree rendered therein. Wilson v. Blake Perry Realty Co., 219 Ga. 57, 131 S.E.2d 555, 1963 Ga. LEXIS 365 (1963). Lis pendens is not a “seizure” for purposes of a malicious prosecution action, as lis pendens does not prevent the sale of property and does not constitute a lien. Bell v. King, Phipps & Assocs., 176 Ga. App. 702, 337 S.E.2d 364, 1985 Ga. App. LEXIS 2522 (1985). Duration of valid notice. - A valid notice of lis pendens, filed pursuant to O.C.G.A. § 44-14-610, remains effective as constructive notice of the action referred to therein only until a final judgment has been entered in the action and the time for appeal therefrom has expired. Vance v. Lomas Mtg. USA, Inc., 263 Ga. 33, 426 S.E.2d 873, 1993 Ga. LEXIS 313 (1993). Lis pendens invalid. - Trial court erred in granting a limited liability company and the company’s members summary judgment in an owner’s action for slander of title, tortious interference with contract, and tortious interference with economic opportunities because the act of sending copies of a notice of lis pendens on the owner’s property and a complaint against the owner to a bank did not fall under the absolute privilege of O.C.G.A. § 51-5-8 since the lis pendens was not valid. Meadow Springs, LLC v. IH Riverdale, LLC, 307 Ga. App. 72, 704 S.E.2d 239, 2010 Ga. App. LEXIS 1102 (2010).

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Lis Pendens, §§ 46, 47. Am. Jur. Pleading and Practice Forms. 17 Am. Jur. Pleading and Practice Forms, Lis Pendens, § 3. C.J.S. 54 C.J.S., Lis Pendens, §§ 14 et seq., 31. ALR. Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306. Lis pendens as affecting property in county or district other than that in which action is pending, 71 A.L.R. 1085.

Doctrine of lis pendens as applicable to actions to avoid conveyance or transfer in fraud of creditors or to prevent such conveyance or transfer, 74 A.L.R. 690. Necessity of filing notice of lis pendens in suit to foreclose mortgage or deed of trust, 138 A.L.R. 1454. Decree on bill of review reversing prior decree as affecting purchaser or mortgagee of real property in the interval between original decree and the filing of the bill of review, 150 A.L.R. 676. Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.