Lis pendens action erroneously dismissed as frivolous.

Byline: Eric T. Berkman

A lis pendens action brought by a thwarted buyer after the seller sold property to a third party despite an allegedly binding agreement to sell the property to the plaintiff should not have been dismissed as frivolous, the Appeals Court has ruled.

The parties had memorialized the agreement to sell with a form contract that also set a deadline for executing a purchase and sale. They didn't meet the deadline, apparently because the attorney for defendant Joyce D. Maxim didn't circulate a draft until after the deadline had passed. The parties kept negotiating until the defendants abruptly terminated negotiations, ultimately selling the property to someone else.

Plaintiff David Ferguson sued for specific performance of the offer and obtained a memorandum of lis pendens on the property. The defendants filed a special motion to dismiss under G.L.c. 184, 15(c), which a Superior Court judge granted, finding the plaintiff's claim devoid of factual support.

But the Appeals Court reversed, citing McCarthy v. Tobin, a 1999 Supreme Judicial Court decision holding that a real estate purchase offer signed by a seller is binding even without a P&S.

"Here, as inMcCarthy, the offer attached to the complaint identified a buyer and a seller; specified a purchase price; established a date, time, and place for closing; and appeared to be fully executed," wrote Judge Kathryn E. Hand for the court.

While this case differed from McCarthy in that the offer here called for the later execution of a P&S, Hand continued, "the offer's enforceability does not appear to have been conditioned on that future agreement [which] the defendants very well may have waived [anyway] by continuing to negotiate the purchase and sale past the deadline."

Nonetheless, the Appeals Court affirmed the Superior Court's dissolution of the lis pendens based on the plaintiff's failure to include with his verified complaint a certification, required under the lis pendens statute, that he had read the complaint and that the facts alleged were true and complete.

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Ferguson v. Maxim, et al., Lawyers Weekly No. 11-147-19 (21 pages)

THE ISSUE: Should a lis pendens action brought by a thwarted buyer after the seller sold property to a third party despite an alleged binding agreement to sell the property to the plaintiff have been dismissed as frivolous?

THE DECISION: No (Appeals Court)

LAWYERS: Thomas M. Bovenzi of Bovenzi &amp...

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