1. WHAT DOES A LIS PENDENS DO?
“Lis pendens” is Latin for “a pending suit.” In the distant past, a court decree bound the rights of the parties before the court, and any purchaser who acquired real property from a litigating party, with or without notice! Modern lis pendens statutes protect a purchaser by providing that the purchaser is not bound by the outcome of that litigation unless a formal memorandum of lis pendens is filed in the land records giving notice of the pending litigation.  

2. CAN A LIS PENDENS BE FILED WITHOUT LITIGATION?
No. By definition, a suit must be pending. Va. Code § 8.01-268(B). Moreover, filing a lis pendens without a suit pending might subject a filer to civil damages for slander of title or criminal liability as a Class 5 felony under a recent law passed by the Virginia Assembly. See Va. Code §18.2-213.2.
 
3. CAN A PURCHASER BE BOUND BY THE RESULTS OF THE LITIGAION EVEN WHEN A MEMORANDUM OF LIS PENDENS IS NOT FILED?
Maybe. If a purchaser actually knows about the lawsuit, the purchaser lacks the “bona fides” of a bona fide purchaser and can be bound. 

4. CAN I STILL BUY THE PROPERTY IF A LIS PENDENS HAS BEEN FILED? 
Yes, but seek legal counsel before you do. A lis pendens is only a warning that the rights acquired may be subject to the rights granted in a valid judgment. A purchaser is free to ignore this warning just as anyone can touch a hot stove after being warned that it is hot!  

5. CAN A BROKER FILE A LIS PENDENS FOR THE COMMISSION? 
No. The court action on which the lis pendens is based must seek to establish an interest in the real property described in the memorandum. Va. Code § 8.01-268(B). The right to a commission is personal property, not real property. To illustrate why it is a personal property interest vs. real property, think about what happens when a sale does not go through: a broker may still have a right to the commission from the seller.  
 
George Hawkins is an attorney with Peterson, Goodman & Hawkins in Vienna, Virginia. He can be reached at ghawkins@pghva-law.com.