Release of Lis Pendens

A release of lis pendens is not available for the asking.

I know that sounds too obvious to require the Connecticut Appellate Court’s attention but it’s really the only thing worth mentioning about the opinion in Levinson v. Lawrence, to be officially released on January 26, 2016.

Levinson and Lawrence had had an on again, off again relationship since college. Lawrence married, and eventually divorced, someone else. She got her house in the divorce, subject to a short-term mortgage in favor of her ex-husband. When the mortgage matured, Levinson paid it off. Shortly after that, Levinson moved into the house.  He made, and paid for, some renovations.

If you’ve ever watched Judge Judy, you know what happened next. The relationship soured. After some trouble of the usual kind in these circumstances, Levinson moved out. He brought a small claims action seeking to recover some personal property and lost. He started an action in Superior Court and recorded a lis pendens against the house. Superior Court dismissed that action. He started a second Superior Court action and recorded another lis pendens. In the second Superior Court action, Levinson claimed that he paid off the mortgage in exchange for a 50% ownership interest in the house, which should be recognized as a resulting trust. He also claimed compensation for the renovations on an unjust enrichment theory. Lawrence counterclaimed alleging slander of title arising out of Levinson’s lis pendens.

During the litigation, Lawrence sent Levinson at different times two separate notices demanding release of lis pendens. In the first notice, Lawrence claimed that Levinson did not properly serve the first lis pendens. The opinion doesn’t mention Lawrence’s basis for her second notice, which related to the second lis pendens.

Years later, the parties stipulated during the litigation that Levinson would release the lis pendens by a certain date and Lawrence would market the house. Levinson was late with his releases and Lawrence apparently never marketed the property.

The trial court found for Lawrence on Levinson’s complaint and Lawrence’s counterclaim.

Arguments on Appeal

There’s not much to say here. Levinson argued that the evidence showed that there was a resulting trust and that Lawrence had been unjustly enriched by Levinson’s renovations. He also argued that the trial court should not have found for Lawrence on her counterclaim or awarded damages under CGS § 49-8. The statute provides for actual or statutory damages, plus attorney’s fees, if a plaintiff fails to timely release an ineffective or invalid lis pendens.

Appellate Court’s Conclusions

The Connecticut Appellate Court affirmed the trial court as to the rulings for Lawrence on Levinson’s complaint. It reversed the trial court’s decision on Lawrence’s counterclaim.

A resulting trust arises only if that is what the parties intended. There was no evidence that the parties intended for Levinson to have a 50% ownership interest in the house.

There is no “unjust” enrichment if one party officiously confers a benefit on another. There’s enrichment, but it’s not unjust because the recipient did not solicit it. There was no evidence that Lawrence solicited the renovations that Levinson made. Rather, the evidence showed that Levinson did the renovations because he wanted them and Lawrence was more or less indifferent.

As for Lawrence’s counterclaim, § 49-8 provides damages if a plaintiff fails to timely release a lis pendens that “has become of no effect pursuant to section 52-326.” CGS § 52-326 essentially provides that a lis pendens becomes ineffective when the controversy underlying the lis pendens is formally disposed — by a judgment or withdrawal of the action, for example. Neither Lawrence’s notices nor the parties’ stipulation disposed of the action. So, it was improper for the trial court to award damages under § 49-8.

Impact

My takeaway from the opinion is simple: If the litigation remains pending, you don’t have to release a lis pendens simply because the other party claims it’s ineffective or invalid. I think that’s true even if the other party turns out to be right.

About the Photo

My son took it. I like it, and not just because he took it. He’s got more that I like and I will feature them in future posts. You can see some of his work here.