For the price of a form lodged in the Central Office, a litigant who claims an interest in land can make that land unsaleable until the case is over. No judge considers the application, no undertaking as to damages is given, and the merits of the claim are not examined by anybody. The owner who wants the entry removed must bring a motion in the High Court and persuade a judge that the case is being unreasonably delayed or is not being prosecuted in good faith. That asymmetry is what makes the lis pendens the most powerful cheap weapon in Irish property litigation, and it is why the courts have spent the last decade narrowing it and the Government now proposes to put it on a 28 day clock. This article explains where the remedy comes from, what it does, how the two Goldstein judgments of 2026 have changed its use against receivers, and what the reform will mean for anyone on either side of a registration.
A remedy older than the common law
The idea behind the lis pendens is Roman. Roman law treated a thing that was the subject of litigation, the res litigiosa, as something that could not be alienated so as to defeat the suit, and the title De litigiosis in Justinian’s Code imposed penalties on those who tried.1 The maxim that nothing should be changed while a suit is pending, pendente lite nihil innovetur, comes from that source. The doctrine entered English law through the Court of Chancery. Lord Bacon’s ordinances for the regulation of that court, issued in 1618, provided that a decree would not bind a purchaser who had bought in good faith before the bill was filed but would bind one who bought while the suit was pending, and by the nineteenth century the rule was settled that a purchaser of property in litigation took it subject to the outcome whether or not he knew of the case. In Bellamy v Sabine in 1857 Lord Cranworth explained that the rule rested not on any notion of notice but on necessity, since litigation about property could never be brought to an end if either party were free to transfer it to a stranger while the case went on.2
The difficulty with a rule that bound purchasers without notice was obvious, and the legislature met it with a register. The Judgments Act 1839 in England and the Judgments (Ireland) Act 1844 provided that a lis pendens would not bind a purchaser or mortgagee unless it had been registered, and the Lis Pendens Act 1867 gave the court power to vacate a registration where the action was not being prosecuted bona fide or had been unreasonably delayed.3 Those Victorian provisions governed Irish practice for a century and a half, and when the Land and Conveyancing Law Reform Act 2009 swept away the old statutes it carried their substance into Part 12 of the new Act. The remedy a litigant registers today is, in its essentials, the one Justinian’s compilers described, filtered through Bacon’s ordinance and a Victorian register.
What the 2009 Act provides
Section 121 establishes a register of lis pendens in the Central Office of the High Court and permits registration in respect of two kinds of proceedings, an action in the High Court or the Circuit Court in which a claim is made to an estate or interest in land, whether by claim or counterclaim, and proceedings to have a conveyance of an estate or interest in land declared void.4 Registration is an administrative act. The prescribed particulars are entered on lodgment of the form and the fee, and from that moment the entry appears on every search made against the property and binds every purchaser and mortgagee who takes afterwards. Where the land is registered the lis pendens may also be entered as a burden on the folio. Section 123 provides the only exit. The court may vacate the entry on the application of the person who registered it, or on the application of any person affected by it who shows that the action has been discontinued or determined, that there has been unreasonable delay in prosecuting it, or that it is not being prosecuted in good faith.5
The Act says nothing about the strength of the claim. A plenary summons that claims an interest in land is enough, and the register does not ask whether the claim is good. That is the design, not an oversight. The lis pendens is a notice, not a judgment, and its purpose is to ensure that the land is still there to be dealt with when the court decides who is entitled to it. The problem is what the notice does in the meantime.
The powers
A registered lis pendens does not in law prevent a sale. In practice it prevents every sale, because no purchaser will complete and no lender will advance against a title that may be reversed by the outcome of pending proceedings. A receiver with a power of sale, a bank with a mortgage, an executor with an estate to administer or a co-owner seeking partition is stopped as effectively as by an injunction, and more cheaply. An injunction requires an application to the court, evidence of a fair question to be tried, an undertaking as to damages that a plaintiff of limited means may be unable to give, and a judge persuaded that the balance of justice favours restraint. A lis pendens requires none of those things. The registrant gives no undertaking, and if the claim fails there is no fund from which the owner can recover the cost of the years in which the property could not be sold.
The High Court said as much in the first Goldstein judgment. What freezes the sale, the court observed, is not the merit of the proceedings but the mere fact of their issue, since registration follows issue automatically and no court looks at the claim until someone applies to vacate it.6 That is the power, and for a party with a genuine claim to the land it is a legitimate one. A purchaser under a contract the vendor is trying to resile from, a beneficiary under a trust of the property, a person claiming title by adverse possession or seeking rectification of a conveyance, a spouse asserting an interest under the family property legislation, each has a claim to the land itself and each is entitled to see that the land is not sold out from under the case. The abuse arises when the claim is to something else, usually money, and the registration is made for the leverage it gives.
The pains
The pains fall on both sides. For the owner the pain is the motion. A lis pendens is removed only by an order of the court, which means an application under section 123 on affidavit, with the costs and the delay that a contested High Court motion involves, and a judge who must be satisfied that the statutory grounds are made out. The owner cannot simply show that the claim is weak, because weakness is not a ground. The owner must show delay or want of good faith, and the registrant will say that the case is being prosecuted as fast as the system allows.
For the registrant the pain is the standard of conduct the courts now impose. A party who registers a lis pendens is expected, in the words adopted in Togher Management Co Ltd v Coolnaleen Developments Ltd and applied in Hurley Property ICAV v Charleen Ltd, to prosecute the action with particular expedition and vigour.7 In Hurley the plaintiff issued proceedings in May 2017, registered the lis pendens in August, ignored four letters asking it to serve the summons, and served only after a motion to vacate had been issued in November. The court vacated the registration. The duty to proceed with expedition did not depend on the defendant asking for service, the explanation that the parties had been trying to settle did not excuse the failure, and a delay of three months in delivering the statement of claim after service compounded it. The Court of Appeal confirmed in Carthy v Harrington that a litigant asserting an interest in encumbered property must proceed with reasonable expedition and that the prejudice to a validly appointed receiver, and the size of the debt behind him, are compelling reasons not to tolerate delay.8
Want of good faith is harder to establish but the courts have found it where the circumstances speak for themselves. In Fennell v Collins a receiver applied to vacate a lis pendens registered by the nephew of the mortgagor, who claimed the lands on foot of a promise said to have been made after the mortgage. Two years after issuing his summons the nephew had taken no further step. Simons J vacated the registration, holding that the unexplained delay, the family relationship, the emphasis in the summons on restraining the sale rather than on the claim itself, and the fact that the alleged promise post dated the mortgage together showed proceedings issued to frustrate the enforcement of the security rather than to vindicate any right to the land.9 The test, as the courts have applied it since Tola Capital Management LLC v Linders, is whether the action is being pursued for the relief it claims or for the collateral advantage of the registration.10
Goldstein
The most significant development came in January 2026. Goldstein Property ICAV had borrowed some €150 million from RELM Loan Opportunities 2 DAC on the security of forty seven commercial properties. The loans fell due on 30 September 2024 and were not repaid, and in November 2024 RELM appointed receivers. Goldstein issued proceedings claiming that RELM was estopped from enforcing because it had indicated that a further extension would be granted, and registered a lis pendens against every one of the forty seven properties. RELM applied to strike out the proceedings and to vacate the registrations.
Twomey J declined to strike out the claim, though he described it as very weak, and he was not satisfied that it had been brought in bad faith. He vacated the lis pendens on a different and more fundamental ground. A challenge to the appointment of a receiver, he held, is not an action in which a claim is made to an estate or interest in land within section 121. A receiver owns no land and holds no interest in it. He has a contractual entitlement under the mortgage to have the borrower’s interest transferred, and litigation about whether that entitlement has arisen is litigation about a contract, not about the land. The court recognised that there was authority the other way, since Fay v Promontoria (Oyster) DAC had allowed registration on the basis that such a claim arguably concerned an interest in land, but preferred the earlier decision in Moorview Developments Ltd v First Active plc that a claim to restrain a receiver is not a claim to the land, and acknowledged that the conflict would have to be resolved on appeal.11 Until it is, a borrower who wishes to stop a receiver selling must apply for an injunction, show a fair question to be tried, give an undertaking as to damages and persuade a judge where the balance of justice lies. The borrower cannot, by the act of issuing a summons, achieve the same result without any of those things.12
The second judgment, in May 2026, showed what happens next. With the lis pendens gone, Goldstein’s solicitors wrote to the auctioneers retained by the receivers warning that they could be sued if they continued to act in the sale of one of the properties, and Goldstein then issued a second action disputing the redemption figure and applied to restrain the sale of all forty seven properties. The court refused the injunction. The claim was weak, the application came sixteen months after the receivers were appointed, there was no cogent evidence of sale at an undervalue, and Goldstein could bid for the properties itself if it had the funding. The judge described the letter to the auctioneers as a threat of litigation against an innocent third party, noted that it had not mentioned that the court had already described the underlying claim as very weak, and observed that it was the third attempt to stop the sale without a court order. He stopped short of finding the conduct unlawful and distinguished it from the lawfare condemned by the Supreme Court and the Court of Appeal in other recent cases, but he made it plain that it had not assisted the plaintiff.13
Taken together the judgments mark a change of attitude. For fifteen years the lis pendens was the standard first move of a borrower facing a receiver, and the receiver’s standard reply was a section 123 motion that took months and turned on delay. Goldstein says that in a receivership case the registration should never have been made, and that the only legitimate route to stopping a sale is the one that requires the borrower to put its case and its money before a judge.
The reform to come
The General Scheme of the Civil Reform Bill, published by the Department of Justice on 6 January 2026, proposes to deal with the asymmetry at its root. Under the scheme a lis pendens will be vacated automatically twenty eight days after registration unless, within that period, the registrant applies to the court and obtains an order extending it. If the court refuses the extension the registration lapses and cannot be made again. The existing grounds for vacating a registration, discontinuance or determination of the action, unreasonable delay and want of good faith, are retained for any registration that survives the first month.14
The effect, if the scheme is enacted as drafted, is to turn the lis pendens from an indefinite notice into an interim measure. The burden moves from the owner, who at present must apply to remove the entry, to the registrant, who will have to justify it before a judge within a month and, one would expect, on evidence that the claim is to an estate or interest in land and has a real prospect of success. A registration will no longer sit on a title for years unexamined. What the scheme does not do is introduce an undertaking as to damages or a statutory remedy for wrongful registration, so a registrant who obtains an extension on a claim that ultimately fails will still have cost the owner the period of the litigation without recourse. Whether the courts will develop the extension hearing into something closer to an interlocutory injunction, with the same attention to the balance of justice, remains to be seen. The scheme is a general scheme and not yet a Bill, and the detail may change before it reaches the Oireachtas, but the direction is clear and it is the same direction the courts have been travelling since Hurley.
Using the remedy well
For a party with a genuine claim to land, the remedy remains available and remains worth using, provided it is used as the Act intends. The claim must be to an estate or interest in the land itself, and the pleading should say so in terms, identifying the property, the interest claimed and the basis for it. A claim for damages, for an account, for the setting aside of a loan or for a declaration about the conduct of a lender or a receiver will not do, and after Goldstein an attempt to dress such a claim as a claim to the land invites a motion that will succeed. The summons should be served at once and the statement of claim delivered without being asked for, because the registration is itself the reason the court will expect speed. The claimant should assume that a section 123 motion will follow and should have the evidence of the claim and of its progress ready for it, and should be prepared, once the Civil Reform Bill is law, to make that case within twenty eight days of lodging the form rather than at a time of the opponent’s choosing. Above all the claimant should not use the registration to negotiate. A lis pendens registered to extract a refinancing, a settlement or a withdrawal is one the court will remove, and the correspondence in which the price was named will be exhibited to the motion.
For an owner, a lender or a receiver who finds a lis pendens on a title, the first step is to read the pleading against section 121. If the claim is not a claim to the land, the registration is vulnerable on that ground alone and the motion should say so. If the claim is to the land, the question becomes delay and good faith, and the correspondence should be built accordingly, with service demanded, pleadings called for and every period of inactivity recorded, because the motion when it comes will be decided on that record. The motion should seek costs, and where the registration has been used as leverage the affidavit should say so plainly. A receiver should remember that the registrant’s alternative, an injunction, carries an undertaking as to damages, and that a borrower forced onto that route is a borrower who must put its case before a judge.
The lis pendens has survived from Justinian to the Civil Reform Bill because the need it answers is real. Land in litigation has to stay where it is until the litigation ends. What the courts have spent the last decade saying, and what the legislature now proposes to write into the Act, is that the same remedy cannot be allowed to do the work of an injunction without the safeguards of one. The litigant who registers for the right reasons and prosecutes with expedition has nothing to fear from that. The litigant who registers for leverage has already been told, in Goldstein, what the court thinks.
This article is for general information only and does not constitute legal advice. The General Scheme of the Civil Reform Bill 2025 had not been enacted at the date of writing and its provisions may change. Advice should be taken on the particular proceedings before a lis pendens is registered or an application made to vacate one.
Notes
- Codex Justinianus, Book 8, Title 36, De litigiosis. ↩
- Bellamy v Sabine (1857) 1 De G & J 566; Lord Bacon’s Ordinances in Chancery (1618), Ordinance 12. ↩
- Judgments Act 1839, section 7; Judgments (Ireland) Act 1844, section 10; Lis Pendens Act 1867, section 2. ↩
- Land and Conveyancing Law Reform Act 2009, sections 121 and 122. ↩
- Land and Conveyancing Law Reform Act 2009, section 123. ↩
- Goldstein Property ICAV v RELM Loan Opportunities 2 DAC [2026] IEHC 29 (High Court, Twomey J, January 2026). ↩
- Togher Management Co Ltd v Coolnaleen Developments Ltd [2014] IEHC 596 (Haughton J); Hurley Property ICAV v Charleen Ltd [2018] IEHC 611. ↩
- Carthy v Harrington [2018] IECA 321. ↩
- Fennell v Collins [2019] IEHC 572 (High Court, Simons J). ↩
- Tola Capital Management LLC v Linders [2014] IEHC 324. ↩
- Fay v Promontoria (Oyster) DAC [2022] IEHC 483; Moorview Developments Ltd v First Active plc [2011] 1 IR 117. ↩
- Goldstein Property ICAV v RELM Loan Opportunities 2 DAC [2026] IEHC 29, above. ↩
- Goldstein Property ICAV v RELM Loan Opportunities 2 DAC [2026] IEHC 299 (High Court, Twomey J, May 2026); M v M [2026] IESC 2; Morgan v Labour Court [2025] IECA 2. ↩
- General Scheme of the Civil Reform Bill 2025, Head 29, published 6 January 2026. ↩