A notice of pendency can be an important tool to protect a litigant’s alleged rights in contested real property. A trio of recent Commercial Division cases, however, highlights critical judicial limitations on what constitutes a controversy impacting an interest in real property such as to make a notice of pendency proper.1 While these limitations—which require that the impacted interest in property be a direct one, and that the relief sought directly impact that interest—circumscribe the factual situations in which a notice of pendency may be used, a careful pleading of the complaint might avoid them.
The Notice of Pendency
The filing of a notice of pendency protects the “right, title or interest claimed by a plaintiff in the lands of a defendant” in an ongoing litigation.2 The filing of the notice functions by binding subsequent purchasers of the real property to the outcome of the litigation.3 In other words, if the plaintiff prevails on its claims, it may assert its rights to the real property even against a party who purchased the property from the defendant during the pendency of the dispute.
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