The short answer
If you have a property under contract and want to protect that deal, the tool you're looking for is a memorandum of contract — not a lis pendens. The distinction comes down to what each document is notice of:
- A memorandum is notice that a genuine, signed contract exists on the property.
- A lis pendens (Latin for "suit pending") is notice that a lawsuit affecting title to the property has been filed and is active in court.
A signed contract is not a lawsuit. So the two instruments live in different worlds: one is the ordinary way to record notice of a purchase, the other belongs to active litigation and is typically filed by or through an attorney handling that case.
What a memorandum of contract is
A memorandum of contract is a short, recordable document that gives public notice that a purchase or option contract exists between a buyer and a seller for a specific property. It references the underlying agreement without publishing the private terms — you don't record the purchase price or your assignment fee. Once it's on the county's real property records, anyone who runs title is on constructive notice that you claim an equitable interest in the parcel.
The threshold to file one is straightforward: you need a real, fully executed contract. That's the whole basis of the notice. There's no court, no judge, no litigation — just a properly acknowledged document recorded where the property sits.
What a lis pendens is
A lis pendens is a notice recorded against a property to warn the world that there is pending litigation whose outcome could affect title to that property — a quiet-title action, a specific-performance suit, a partition, a foreclosure dispute, a divorce touching the home. It ties the property to the lawsuit: a later buyer takes title subject to whatever the court decides.
The threshold is much higher. A lis pendens is only proper when an actual lawsuit has already been filed and is genuinely about an interest in that real property. No suit, no valid lis pendens. Because it is tied to a court case, it is normally prepared and filed through the attorney litigating the matter — not something an investor records to shore up a deal.
Side by side
| Memorandum of contract | Lis pendens | |
|---|---|---|
| What it needs | A signed, binding contract | An actual pending lawsuit affecting title |
| Notice of | A contract exists on the property | A court case could change who owns it |
| Who files it | The buyer / interested party | A party to the suit, usually via counsel |
| Court involved? | No | Yes — a filed case is the whole basis |
| Typical use | Protecting a purchase or assignment | Preserving a claim during litigation |
| Downside if misused | Slander of title if the contract isn't real | Expungement, sanctions, damages if no valid suit |
When a memorandum fits
A memorandum of contract is the right instrument when:
- You have a signed, live purchase or option contract on the property.
- You intend to close or assign, and you have a genuine interest to protect.
- You want a title company or a competing buyer to see that a deal is already in progress.
This is the everyday scenario for a wholesaler or investor. There's no dispute in court — just a contract you'd like the public record to reflect so the seller can't quietly convey to someone else before you perform.
When a lis pendens fits
A lis pendens fits a narrow, litigation-shaped situation: you (or your counsel) have filed a lawsuit that actually seeks to establish or affect an interest in that specific property, and you want the record to warn later buyers and lenders that the case is pending. It is a byproduct of litigation, not a substitute for it. If there's no case on file, there's no proper lis pendens.
Whether litigation and a lis pendens are appropriate on your facts is a legal question for a real-estate attorney in your state. This guide is general information, not legal advice.
The risk of a wrongful lis pendens
Recording a lis pendens without a valid, pending suit is not a shortcut — it's a liability. Because it clouds title based on a claim that a lawsuit exists, filing one improperly can expose you to:
- Expungement. Many states have a fast procedure to strike a groundless lis pendens from the record, often with the loser paying the other side's attorney's fees.
- Slander of title. A false or bad-faith recording that clouds someone's property can support a damages claim.
- Sanctions. Some jurisdictions treat an abusive lis pendens as an improper lien and penalize it directly.
A memorandum carries its own version of this rule — it must reflect a real contract, or it too becomes a false cloud on title — but the bar to have a legitimate memorandum is simply having a signed contract, which you already do. Reaching for a lis pendens when what you have is a contract stacks a much heavier, riskier tool on top of a situation that never called for it.
Why a memorandum is the lighter tool
For protecting a purchase, the memorandum is lighter in every way that matters. It's grounded in a document you already hold, it doesn't require you to file or fund a lawsuit, and it's designed to come off cleanly: a responsible memorandum is time-limited and released as soon as you close or the contract dies. A lis pendens, by contrast, only makes sense as long as real litigation is live — and drags all the cost and exposure of that litigation with it.
Bottom line
Have a signed contract and want to protect the deal? That's a memorandum of contract. Have a filed lawsuit over the property? That's when a lis pendens enters the picture — through the attorney handling the case.
Do it the easy way
Jurably files the lighter tool. Upload your signed contract, verify the parties and legal description, notarize online, and we certified-mail the notice and record the memorandum plus a sworn certificate of mailing — then hand you the instrument number, with a built-in 90-day expiration and one-click release.
Jurably is a self-help filing and notary service, not a law firm, and does not provide legal advice or represent you. This article is general information for real-estate investors; for a lis pendens or any litigation question, consult a real-estate attorney in your state.