2017 Wisconsin Statutes & Annotations
Chapter 840. Real property actions; general provisions.
840.10 Lis pendens; who may file; effect when void; discharge.
840.10 Lis pendens; who may file; effect when void; discharge.
(1)
(a) In an action where relief is demanded affecting described real property which relief might confirm or change interests in the real property, after the filing of the complaint the plaintiff shall present for filing or recording in the office of the register of deeds of each county where any part thereof is situated, a lis pendens containing the names of the parties, the object of the action and a description of the land in that county affected thereby. In any action if the defendant asks relief on a counterclaim or cross-complaint, which contains a legal description of the real estate and seeks such relief, after the filing of the counterclaim or cross-complaint the defendant shall present for filing or recording a lis pendens. From the time of filing or recording every purchaser or encumbrancer whose conveyance or encumbrance is not recorded or filed shall be deemed a subsequent purchaser or encumbrancer and shall be bound by the proceedings in the action to the same extent and in the same manner as if the purchaser or encumbrancer were a party thereto. In any such action in which a lis pendens has been filed or recorded, if the party who presents for filing or recording the lis pendens fails for one year after the filing or recording thereof to serve and file proof of service of the summons or the counterclaim or cross-complaint on one or more of the adverse parties, the lis pendens shall be void, and upon motion and proof the court may order it discharged. Judgment shall not be entered in favor of the party required to present for filing or recording a lis pendens until 20 days after the lis pendens has been filed or recorded.
(b) A lis pendens that is prepared by a member of the State Bar of Wisconsin need not be authenticated.
(2) Proceedings for acquiring land by right of eminent domain are actions within the provisions of this section and notice of the pendency thereof may be filed at any time, except as otherwise provided by statute.
(3) The lis pendens may be discharged upon the condition and in the manner provided by s. 811.22 for discharging an attachment or by s. 806.19 (1) (a) for satisfying a judgment. An instrument filed before May 1, 1951, but in accordance with this subsection shall be a discharge of the lis pendens described therein.
(4) This section applies to all courts in this state, including United States district courts.
A motion to review a judgment on the grounds that the plaintiff failed to file an amended lis pendens was properly denied. Particularly as between the parties, failure to file a lis pendens is a minor irregularity. Zapuchlak v. Hucal, 82 Wis. 2d 184, 262 N.W.2d 514 (1978).
A foreign divorce action notice filed with the register of deeds of the county in which one foreign litigant owned property was a valid lis pendens. Belleville State Bank v. Steele, 117 Wis. 2d 563, 345 N.W.2d 405 (1984).
Sections 703.25 (3) and 840.10 (1) permit the filing of a lis pendens in an action for a money judgment against a condominium association as the judgment shall be a lien against each condominium unit although their owners are not defendants in the action. Interlaken Service Corporation v. Interlaken Condominium Association, 222 Wis. 2d 299, 588 N.W.2d 262 (Ct. App. 1998), 97-1107.
This section permits a lis pendens to be recorded in connection with an out-of-state suit seeking title or possession of property in Wisconsin by means of a constructive trust. Ross v. Specialty Risk Consultants, Inc. 2000 WI App 258, 240 Wis. 2d 23, 621 N.W.2d 669, 00-0089.
Even if a statutory lis pendens under this section is dissolved, common law lis pendens applies and a purchaser who is a party to the relevant litigation takes the property subject to the outcome of the litigation, including appeals. Gaugert v. Duve, 2001 WI 83, 244 Wis. 2d 691, 628 N.W.2d 861, 98-3004.
A lis pendens under sub. (1) must be maintained as long as there are pending proceedings in an action, including appellate proceedings. Once all proceedings are concluded, the court may order the lis pendens discharged consistent with sub. (3). Zweber v. Melar Ltd., Inc. 2004 WI App 185, 276 Wis. 2d 156, 687 N.W.2d 818, 04-0538.
This section imposes the requirement of recording a lis pendens on the plaintiff who files a complaint and on a defendant seeking relief on a counterclaim or a cross-complaint. A defendant construction lien claimant is not a plaintiff, and no cross-claim is necessary in order for a defendant construction lien claimant to obtain a determination of the amount due it and an order for sale in a lien foreclosure action. There is no logical rationale for imposing the requirements of sub. (1) (a) on a defendant construction lien claimant because it unnecessarily files a cross-claim seeking relief it is entitled to under ss. 779.09 to 779.11. Carolina Builders Corporation v. Dietzman, 2007 WI App 201, 304 Wis. 2d 773, 739 N.W.2d 53, 06-3180.
A lis pendens simply alerts 3rd parties to judicial proceedings involving real estate. It does not create an encumbrance on the property. Zeddun v. Griswold, 830 F.3d 683 (2016).
