In high-stakes real estate litigation—particularly specific performance cases—the Lis Pendens is a critical tool. By recording said notice of lis pendens in the public records, a plaintiff ensures that the property cannot be easily sold or refinanced while the lawsuit is pending.
However, defendants often deploy a standard counter-measure: the Motion to Require a Lis Pendens Bond.
The goal of this motion is often tactical. By asking the court to require the plaintiff to post a massive cash bond (sometimes hundreds of thousands of dollars) to keep the Lis Pendens in place, the defendant hopes to price the plaintiff out of the lawsuit. If the plaintiff cannot afford the bond, the Lis Pendens is dissolved, and the property can be sold, often rendering the lawsuit meaningless.
But in a rapidly appreciating real estate market—like we often see in Miami and South Florida—defendants may face a significant legal hurdle in securing these bonds.
Is a Lis Pendens Bond Mandatory in Florida?
A common misconception among property owners is that a bond is automatic. They argue that if a plaintiff clouds their title, the plaintiff must secure them against damages.
This is incorrect. Under Florida law, the imposition of a Lis Pendens bond is discretionary, not mandatory.
The Florida Supreme Court has held that a trial court has the discretion to require a bond only when the property-holder defendant can show that damages will likely result if the notice of Lis Pendens is unjustified. The burden of proof rests entirely on the property owner
According to the Third District Court of Appeal in Licea v. Anllo, a property owner must demonstrate two specific things to justify a lis pendens bond:
That the Lis Pendens will likely result in loss or damage.
The amount of those damages.
If the defendant cannot prove likely damages with evidence by "competent and substantial” evidence, then court should not impose a bond.
The "Appreciation" Defense: Why Rising Markets Matter
The most potent defense against a bond motion often lies in the real estate market itself.
When a defendant claims they are being damaged by the inability to sell their property today, they are essentially claiming "loss of use" of the sale proceeds. However, if the property's value is increasing every month, the defendant is arguably not suffering a loss—they are gaining equity.
The Mitchell Precedent
A controlling case on this issue is Mitchell v. Metropolitan at Lake Eola, L.L.C.. In Mitchell, a property owner demanded a $600,000 bond, arguing they were losing the use of proceeds from a potential sale.
The Fifth District Court of Appeal quashed the bond, ruling that the owner failed to account for the property's appreciation. The court noted that the owner "offered no evidence that the unit's value was expected to decline. In fact, the evidence suggested the contrary".
The court's logic was simple: if the probable rate of appreciation exceeds the "loss of use" damages, the owner is suffering no net harm.
Applying the Law to Your Facts
In a scenario where a property has appreciated by millions of dollars since the original contract was signed, a defendant faces a nearly impossible math problem.
If a seller tries to claim damages, a plaintiff can argue that the "windfall" from the property's increased value far outweighs any speculative damages caused by the delay. As seen in Mitchell, if the evidence shows a substantial gain in value, the bond amount might be reduced to a nominal figure—or denied entirely.
Conclusion
Real estate litigation requires more than just knowledge of contract law; it requires an understanding of market economics. A Motion to Require a Lis Pendens Bond is a serious threat, but it is not indefensible. By leveraging the burden of proof and market data, plaintiffs can often defeat these motions and keep their cases alive.
Facing a complex real estate dispute? Contact Revah Law Group at (305) 315-4605 or email Phil@RevahLaw.com to discuss your litigation strategy.