Notice of Lis Pendens - Required Service on Interested Parties
When TxDOT files a lis pendens in the county's official/real property records in connection with an eminent domain proceeding, Texas Property Code Section 12.007(d) requires that
not later than the third day after the date the lis pendens is filed in the county's official/real property records
, ROW PD must, via one of the methods of service discussed below, serve or cause a copy of the Notice of Lis Pendens to be served on each party
to the proceeding who has an interest in the affected real property. “Each party to the proceeding” means ALL parties to the proceeding that are identifiable and locatable, not just the fee owner(s).Note: While the statute does not expressly require that a copy of the condemnation petition be provided with the Notice of Lis Pendens, we recommend doing so, to provide the recipient a context for the service of the lis pendens.
Failing to timely serve the Notice of Lis Pendens in compliance with the statute enables any interested party to file a motion under Property Code Sec. 12.0071 to “expunge” from the official records the previously filed lis pendens. The court is required to order the Notice of Lis Pendens expunged “if the court determines that...(3) the person who filed the notice for record did not serve a copy of the notice on each party entitled to a copy under Section 12.007 (d).” An expunction of the lis pendens could potentially disrupt a condemnation proceeding or adversely affect the quality of the State's title, should post-lis pendens interests arise.
It is recommended that a cover letter accompany the Notice of Lis Pendens stating that: “In compliance with Property Code Section 12.007(d), we enclose a copy of the Notice of Lis Pendens the State of Texas has filed in the County's official records, related to an eminent domain proceeding filed by the State to acquire certain property for highway purposes (see enclosed petition for additional information). This required statutory notice of the filing of the lis pendens requires no action by you at this time. In the future, you will receive advance notice of the date of the scheduled special commissioners' hearing.”
Methods and proof of service of Notice of Lis Pendens:
- A copy of the lis pendens should be served on all known / locatable holders of any interest in the property to be acquired by eminent domain (or on an authorized agent or attorney). It is believed that the legislature didnotintend for unknown or known /unlocatable parties cited by publication to be served with Notice of Lis Pendens.
- The Notice of Lis Pendens can be served in person, by mail or even by fax (but not by email). However, thepreferredmethod of service is to send the copy of lis pendens and petition by certified mail, return receipt requested, to the party's last known physical or post office box address. This service method is strongly recommended, because an interested party could, during the pendency of the eminent domain proceeding, file a motion to expunge the lis pendens, and the State may then be required to prove compliance with the 3 day notice requirement. Personal service could be difficult to prove if the person personally delivering the Notice of Lis Pendens is no longer available at the time the interested party challenges the State's compliance with the statute. Similarly, it may be difficult to prove that a fax number belonged to the party as the time the notice was faxed.
- Service of Notice of Lis Pendens via certified U.S. mail is deemed by the Texas rules of civil procedure to occur at the time the notice is deposited in the U.S. mail. In other words, when the party actually receives the mailed notice is irrelevant, so long as it is mailed on or before the third day after the lis pendens is filed of record. Since proving compliance with the 3 day notice requirement would require the State to prove the date the notice was mailed, it is strongly recommended that “proof of mailing” of the notice be obtained from the post office (white receipt for certified mail, stamped by the post office at the time of mailing with the date the item was mailed). This receipt would provide independent documentary proof of the timely mailing of the notice.
- Until the eminent domain proceeding is concluded, documentation proving the method and timeliness of the services of lis pendens should be retained by ROW PD.