Court Refuses to Dissolve Lis Pendens After Seller Allegedly Shrinks Parcel Before Closing

A recent Essex Superior Court decision offers an important reminder to Massachusetts real estate litigators: courts will not dissolve a lis pendens simply because a defendant disputes the facts.

In SRO Development LLC v. 46 Seagrass LLC, the court allowed a buyer’s lis pendens to remain in place after the seller allegedly reduced the size of the property being sold shortly before closing through an Approval Not Required (“ANR”) plan.

The Dispute

SRO Development agreed to purchase property located at 46-50 Cable Avenue in Salisbury for $555,000. The deal was contingent on the seller obtaining approvals to construct a duplex and a single-family home on the property.

The purchase and sale agreement identified the property by both street address and recorded deed reference. After the seller obtained the required approvals, the parties scheduled an August 2025 closing.

At closing, however, the seller allegedly presented a deed describing a different parcel than the one referenced in the agreement. The revised deed incorporated a recently approved ANR plan that reduced the parcel by approximately 2,400 square feet and transferred land to an abutter.

The buyer refused to close and filed suit asserting claims for breach of contract, fraud, and violations of Chapter 93A. The buyer also obtained a lis pendens against the property.

Seller’s Motion to Dismiss Fails

The seller moved to dismiss the claims and dissolve the lis pendens under G.L. c. 184, §15, arguing that the buyer’s claims lacked factual and legal merit.

Among other arguments, the seller claimed:

• the buyer materially breached the agreement first by failing to pay a required deposit;
• the purchase and sale agreement failed to satisfy the Statute of Frauds because the property description was insufficient; and
• the parties were operating under a mutual mistake concerning the property boundaries.

Judge Tabit rejected all three arguments at this preliminary stage.

Material Breach Was a Fact Question

The court found the record unclear as to whether the buyer actually failed to pay the deposit. But even assuming there was a failure to pay, the seller continued pursuing permits and scheduled the closing anyway.

That conduct mattered.

The court held that whether the alleged breach was “material” enough to excuse the seller’s own performance was a factual issue for a jury, not something to be resolved on a special motion to dismiss.

The ruling is a useful reminder that parties who continue performing after an alleged default may weaken later arguments that the default excused their own obligations.

Court Rejects Statute of Frauds Argument

The seller also argued that the agreement was unenforceable because the property description was too vague.

The court disagreed, holding that identifying the property by address and recorded deed was sufficiently definite. Judge Tabit noted that buyers and sellers routinely rely on recorded deeds and addresses in real estate transactions and rejected the notion that every transaction would require a pre-contract survey to satisfy the Statute of Frauds.

No Evidence of Mutual Mistake

The court likewise rejected the seller’s mutual mistake argument, finding no evidence that the parties intended to contract for boundaries different from those stated in the purchase and sale agreement.

Instead, the buyer plausibly alleged that the seller later altered the parcel through the ANR process after the agreement had already been executed.

Key Takeaways

The decision reinforces several important principles for Massachusetts real estate disputes:

• A lis pendens will survive where claims affecting title have reasonable factual and legal support.
• Courts will not weigh credibility or resolve factual disputes at the lis pendens stage.
• Continuing to perform after an alleged breach may undermine a party’s claim that the breach was material.
• Property descriptions referencing recorded deeds and street addresses will generally satisfy the Statute of Frauds.
• Post-contract boundary changes can create significant litigation exposure.

For practitioners, the case is another strong example of the high burden defendants face when attempting to dissolve a lis pendens early in a real estate case.