When litigation involves a claim of title to real estate, the claimant may obtain judicial approval to record a lis pendens against the property, notifying potential purchasers that litigation affecting the property is pending. See Massachusetts G.L. c. 184, §15. Real estate subject to a lis pendens may be virtually unmarketable. While a lis pendens serves an important purpose when there is a genuine dispute as to title, when the underlying claim is weak or frivolous the recording of a lis pendens unjustly restricts the owner’s right to sell the property. To protect owners from lis pendens based on frivolous claims, G.L. c. 184, §15(c) allows an owner to file a special motion to dismiss the underlying action, thereby also dissolving the lis pendens.
Under section 15(c), a special motion to dismiss,
shall be granted if the court finds that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds. In ruling on the special motion to dismiss the court shall consider verified pleadings and affidavits, if any, meeting the requirements of the Massachusetts rules of civil procedure.
(Emphasis added). See also Galipault v. Wash Rock Investments, LLC, 65 Mass. App. Ct. 73, 81 (2005). As the statute’s use of the disjunctive “or” indicates, a court must grant the special motion and dismiss the plaintiff’s complaint if it is frivolous for any of the three listed reasons.
A court hearing a special motion to dismiss applies essentially the same standard as governs summary judgment. Donius v. Milligan, 2016 WL 3926577, *3 (Mass. Land Ct. 7/25/16); St. John’s Holdings, LLC v. Two Electronics, LLC, 2016 WL 1460477, *2 (Mass. Land Ct. 4/14/16); Gould v. Lancaster Technology Park Limited Partnership, 2006 WL 700884, *1 (Mass. Super. 2/17/06), aff’d 69 Mass. App. Ct. 1109 (2007); Waters v. Cook, 2005 WL 2864806, *3 (Mass. Land Ct. 11/2/05). In St. John’s, the Court stated,
The standard of review for a special motion to dismiss is the functional equivalent of a motion for summary judgment; it requires the court to assess the plaintiff’s claim in light of the record before the court. The court does not weigh evidence, assess credibility, or find facts; it may only consider undisputed material facts and apply them to the law. In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. The judge must consider the verified pleadings and affidavits in ruling on the special motion and, if the motion is granted, award costs and attorney’s fees to the aggrieved party.
2016 WL 1460477, at *2 (citations omitted). In accordance with the summary judgment standard, a party filing a special motion to dismiss, “in a case in which the opposing party will have the burden of proof at trial is entitled to [dismissal] if he demonstrates … by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
Even without concluding that the underlying claim lacks reasonable factual support, arguable basis in law or is subject to a valid legal defense, a court may grant a special motion to dismiss where the plaintiff’s complaint does not, “include a certification by the claimant made under the penalties of perjury that the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom.” G.L. c. 184, §15(b) (emphasis added). In DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903 (2016), the Massachusetts Appeals Court stated,
The complaint must include a certification by the claimant made under the penalties of perjury that “no material facts have been omitted therefrom.” No such certification was made in the instant case. This requirement is not one of mere form. In view of the serious consequences that may arise from the recording of a memorandum of lis pendens, strict compliance with the statutory prerequisites is required. The omission of the certification constituted a material deficiency. Accordingly, the orders denying the plaintiff’s motion for a preliminary injunction and motion for approval of a memorandum of lis pendens are affirmed.
Id. at 906. (Emphasis added, citations omitted). See also Haley v. Welch, 84 Mass. App. Ct. 1104, 2013 WL 3820680, *2 (7/25/13) (unpublished Rule 1:28 opinion) (affirming trial judge’s refusal to allow late or retroactive verification where complaint, as filed, failed to certify that no material facts had been omitted).
Moreover, even where the required certification is made, a court should grant a special motion to dismiss where the complaint actually omits material facts. “A party’s failure to include all material facts may result in the dismissal of that party’s claims where the omitted facts establish that those claims are devoid of reasonable factual support or arguable basis in law.” McMann v. McGowan, 71 Mass. App. Ct. 513, 519-20 (2008). “A material fact is one that is ‘significant or essential to the issue or matter at hand.’ ” Id. at 520, quoting Black’s Law Dictionary 629 (8th ed. 2004). This makes sense because the lis pendens statute assumes that a court endorsing a lis pendens has considered all relevant and material facts.
Accordingly, where a lis pendens is recorded in connection with claims which arguably are frivolous, or where the compliant fails to certify that it contains all material facts or in fact omits material facts, the property owner should consider filing a special motion to dismiss.