© 2017 Michael Livolsi Law. Disclaimers.

WHAT SHOULD I DO IF SOMEONE HAS FILED A FALSE OR FRAUDULENT DOCUMENT AFFECTING MY PROPERTY?

January 1, 2016

Unfortunately, if you find that your property has been subject to a lien, a lis pendens, or even fraudulently sold without your knowledge or permission, you are not alone.  My office has handled quite a few of these matters, and they can arise in any number of ways.  

One of the most common is the filing of a lis pendens.  A lis pendent, also known as a "notice of pendency" is a notice which one party files with the county clerks office claiming an interest in the real property of another party. Lis pendens are commonly filed any time a pending legal action could affect the title to, use of, or enjoyment of real property.  At times, however, they are filed simply to harass an owner when there is no real claim to to title or possession.  Strategically, a lis pendens is filed to put any would-be purchasers on notice that they might not be purchasing from the true owner, and the transaction may be voided if the seller is found not to have the interest they purport to have.  It casts doubt on the title to the property and, functionally, deters most buyers or substantially reduces the value of that title.  Legally, it defeats "bona-fide-purchaser" status, which protects buyers from subsequent claims to property, against the seller from whom they purchased, when the buyer had no constructive notice of that claim.  Although a lis pendens is a bothersome device with which it is easy to encumber someone's title, it is also easy to remove.  The owner must simply move to expunge the notice, and the filing party then has the burden of proof to show why the lis pendens should not be expunged.  

Another instrument which may be filed against your property is called the "mechanic's lien".  Mechanic's liens are commonly filed for unpaid amounts owed on work performed on the property. There are three ways in which to remove a mechanic's lien.  The first two are in litigation: 1) challenging the lien for defects in the procedure used for filing and perfection of the lien, and 2) challenging the lien for defects on the face of the lien.  The third is to serve a demand to prosecute the lien, and to wait until the statutory period in which to prosecute has past.  

A third, and less common, occurrence is when a deed is fraudulently transferred.  This is a difficult task to accomplish, but it is accomplished with enough frequency that I have handled these cases regularly over the last ten years.  There any many ways in which a fraudulent transfer can be accomplished.  It can be as simple as a family member or business partner succumbing to greed and forging a signature, and sometimes can be more complex, involving forged powers of attorney, for example.  In many cases, the fraudulent elements of the deal are sufficiently detailed enough to avoid the suspicions of lenders.  In any case in which a fraudulent deed, or other interest in real property, is claimed, the holder of the superior or proper interest can commence a quiet title action seeking to recover possession or title.  In a quiet title action, the Court or Jury determines the proper owner or holder of real property, and the decision will clear up any cloud or encumbrance of title asserts by any third parties.  

Although this has hopefully been informative, these are complicated legal proceedings subject to strict statutory and procedural requirements.  The legal terms often used in these proceedings can be nuanced, especially those that describe legal interests in property.  For this reason, it is not advisable to attempt these procedures without the help of an attorney.  An experienced real estate attorney can properly commence and establish your case and help you toward recovering your property.  

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