Lis Pendens May Not be Used to Give Notice of Out-of-State Litigation Affecting Property in Georgia

The Georgia Supreme Court held on a question of first impression, that a Georgia lis pendens filing may not be used to give notice of litigation in another state which may affect property in Georgia. Although the lis pendens statute (O.C.G.A. § 44-14-610) gives no express guidance on this issue, the Georgia Supreme Court has held that all of the common law lis pendens elements must be satisfied before a valid lis pendens can arise. Under the common law, the court in which an action is pending must have jurisdiction over the real property at issue for lis pendens to attach. Thus, litigation in a Florida court which did not have subject matter jurisdiction over the real property in Georgia could not create a lis pendens and the notices filed concerning that litigation were invalid. The Court held that allowing lis pendens to include out-of-state litigation might upset the balance between notice for the protection of third party claimants and abuse of lis pendens. Therefore, the court said if Georgia is to abandon the common law doctrine of lis pendens and expand the doctrine to litigation outside of Georgia, that should be done by the legislature.

Boca Petroco, Inc. v. Petroleum Realty II, LLC., 285 Ga. 487, 678 S.E.2d 330 (2009).

Counsel for Defendant: Brad Wolff, with Mitchell W. Berger, Berger Singerman, Ft. Lauderdale, FL, on appeal