KEY WORDS: L '
MEMO TO: LMB | m .
FROM: A. BURROWS
RE: SWFWMD Condemnation Suit Against Prior Owners.-Lis *ASA5S
The question is whether an Order of Taking of a parcel df land by
Condemnation Proceedings against the owner of record is valid as
against a purchaser who purchased the land prior to institution
of the proceedings against his grantors, but failed to record his
deed as required by F.S. 695.01 until after the lis pendens in
the Condemnation Suit was filed.
On the basis of the few cases in Florida dealing with the priority
given a notice of lis pendens versus the recording statute, Florida
can most likely be placed with the group of states which look to
the date of purchase, rather than the date of recording the deed,
as being the determinative date in establishing ownership of land
where an action involving the land is instituted against record
owners prior to recordation of the deed to their grantees. Thus,
the outcome of a suit involving a parcel of land in which a lis
pendens is filed would probably not be binding on a purchaser
who acquired his interest in the land prior to the invitation of
the suit and filing of lis pendens, even though such purchaser
has not recorded his deed as required by F.S. 695.01, unless the
purchaser was made a party to the proceedings.
The Florida case which comes closest to dealing with our problem
is Freligh v Maurer, 111 So. 2nd. 712 (2nd. Dist. Ct. App.
Fla., 1959). That case involved an action by creditors to establish
an equitable lien on property which the debtor-owners had transferred
to Mrs. Freligh two hours prior to the filing of the suit and the
accompanying lis pendens. Mrs. Freligh is an intervenor in the
action between the creditors and the debtors, her grantors. She
alleges her prior title and lack of knowledge of plaintiffs' claims,
that upon execution and delivery of the deed she became a bona fide
purchaser for value, and that the filing of the suit to enforce an
unrecorded and unliquidated claim accompanied by a lis pendens did
not adversely affect her title.
Plantiff contends that the Florida Recording Statute controls,
and Mrs. Freligh's failure to record the deed prior to recorda-
tion of the lis pendens renders her title subordinate to the lien
on the property, established by the lower court's decree.
The Court found that the Recording Statute, which protects
"creditors or subsequent purchasers for a valuable consideration"
from unrecorded claims of a prior purchaser, applies only to a
creditor who has reduced his claim to a lien or judgment, and
that a lis pendens was not the equivalent of 'a decree establishing
a lien. It held that since the plantiff-creditor had only a
MEMO TO: LMB
Page No. 2
justiable right at the commencement of the action, the 1
did not have the effect of establishing a priority as ag
equity of the intervenor, Mrs. Freligh. She therefore a
title to the property free and clear of any claims of th
plaintiff, even though she did not record her deed until
the plaintiff recorded his notice of lis pendens.
The fact that the Freligh case dealt with a proceeding i
by a creditor while our case deals with a proceeding in
tion by a State Agency would not necessarily preclude ap
of the holding of this case to ours. The Freligh court
to give priority tollis pendens filed prior to the record
the deed, and thereby denied protection to a creditor, o
class sought to be protected by the recording statute.
likely that a court will also refuse to give priority to
pendens filed prior to the recording of the deed and the
protection to a State Agency which is not a member of th
sought to be protected by the recording statute.
The Freligh case specifically held that the lis pendens
establish a priority as against Mrs. Freligh's equity.
clear, therefore, that a prior purchaser who has not rec
interest would be entitled to compensation for his loss
in land owned by him and taken by eminent domain. But t
Freligh case went farther than a mere protection of a pr
purchaser's equity. It established a clear title in Mrs
It thus appears that if any action is to be binding on t
property, it must name Mrs. Freligh, or any purchaser pr
institution of the proceedings, as owner of the property
least as a party to the action.
The same principle would seem to apply .-norcase. New
tion proceedings would probably have^agaTnst he prior p
as true owner of the property in question, since the ear
proceedings against the property, naming his grantors as
did not join the purchaser as a party.
If the proper parties are named at the commencement of t
and filing of notice of lis pendens, no later alienation
property will be effective as against the lis pe)kdens.
ne of the
3 of the
July 14, 1971
MEMO TO: LMB July 14l 1971
FROM: A. BURROWS
Page No. 3
"The purpose of the notice of lis pendens is to provide record
notice that certain property is the subject of litigation. This
has the effect of preserving the jurisdiction of the court and
assuring an end to the litigation. The purpose of the pending
suit may not be defeated by successive alienations of the
subject property." Brown v Semple, 204 So. 2nd. 229 233
(3rd. Dist. Ct. App. Fla., 1967).
21 Fla. Jur, lis pendens, section 8, capsulizes these idea by
saying at page 257, "(L)is pendens can only affect transfers and
assignments that are made after the suit is started and after
the lis pendens is filed. (A) person who acquired his interest
in the subject matter of a suit prior to the filing of any
notices therein will not be bound by the judgment rendered unless
he is made a party thereto."
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