In short: In 2012 the Third District affirmed, without a written opinion, a Miami-Dade order that dismissed a subtenant’s specific performance claims and discharged its lis pendens. The subtenant argued its recorded memorandum of sublease made the notice immune from discharge without an evidentiary hearing. The affirmance gives no reasons.
The Facts
JHMB, LLC was a subtenant on property slated for redevelopment. Its sublease had been summarized in a recorded memorandum that, according to the oral argument, described rights of first offer. JHMB sued for specific performance and declaratory relief and recorded a notice of lis pendens on the property.
After several rounds of amended complaints, the trial court dismissed the specific performance and declaratory counts and discharged the lis pendens without holding an evidentiary hearing. JHMB appealed the non-final order. It argued that its claim was founded on a duly recorded instrument, the memorandum, so under section 48.23 the court lacked its usual power to discharge the notice, and at minimum needed to take evidence first. It also relied on the 2009 amendments to the statute. The landlord side argued the claims behind the notice had been dismissed, leaving nothing to support it.
Because the court issued no opinion, these facts and arguments come from the recorded argument, not from a written ruling.
The Decision
On July 11, 2012, the Third District affirmed in a one-word per curiam decision. The discharge of the lis pendens and the dismissal of the counts stood. The court did not say whether the memorandum counted as a duly recorded instrument, or whether an evidentiary hearing was required, so the PCA decides nothing beyond this case.
The practical point is simple: once the claims that tie a lawsuit to the land are dismissed, a lis pendens has little left to stand on, whatever has been recorded.
The Law
Under section 48.23, a notice of lis pendens based on a duly recorded instrument, or a construction lien, does not expire after one year and is not subject to the court’s general discharge power in subsection (3). When the pleading is not founded on a recorded instrument, the court controls the notice and may discharge it under injunction standards, and the notice expires after one year unless extended. The 2009 amendment (ch. 2009-39, Laws of Fla.) rewrote much of the statute, including the rules on who takes free of unrecorded claims.
Courts have long debated what it means for an action to be founded on a recorded instrument. A recorded document that merely mentions rights is not always the same as one the lawsuit seeks to enforce. Subsection (3) also allows discharge when the action no longer affects the property, which is the situation after the relevant counts are dismissed.
Current law (2026): Section 48.23 checked on flsenate.gov (2026): recorded-instrument exception in (2) and (3) still present; statute amended in 2009 and 2019.
Lessons
- Recording a memorandum of lease or sublease gives notice, but it does not guarantee a lis pendens will survive if the underlying claims fail.
- Rights of first offer and first refusal should be drafted and recorded carefully; the recorded document should clearly describe the right being enforced.
- A lis pendens rises and falls with the pleading. Repeated amendments that fail to state a claim put the notice at risk.
- A PCA resolves the case but sets no precedent on the recorded-instrument question.
Source: JHMB, LLC v. Charles Bernard, Ltd., No. 3D12-0415 — Fla. 3d DCA (July 11, 2012).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Lis Pendens on a Recorded Sublease — Rightly Discharged? | JHMB v. Charles Bernard, 3D12-0415
Go Deeper
- How Appeals Work in Florida: The 30-Day Deadline, Costs, and What a PCA Means
- Florida's Summary Judgment Rule: How Rule 1.510 Ends Cases Without a Trial
Frequently Asked Questions
What does founded on a duly recorded instrument mean for a lis pendens?
Under section 48.23, a lis pendens based on a recorded document, such as a mortgage being foreclosed, does not expire after a year and is not subject to the court’s general discharge power. Whether a lawsuit is truly founded on a recorded instrument is often disputed, especially when the document only summarizes an unrecorded agreement.
Can a tenant record a lis pendens in Florida?
A tenant or subtenant suing over rights in the property, such as a right of first refusal or first offer, may record a lis pendens. If the claim is not based on a recorded instrument, the court can discharge it or require a bond, and it expires after one year unless extended.
Does a court have to hold an evidentiary hearing before discharging a lis pendens?
Not always. When the counts that connect the lawsuit to the property have been dismissed, the action may no longer affect the property, and section 48.23(3) allows discharge. The JHMB appeal raised the hearing question, but the PCA did not answer it.
What is a memorandum of lease in Florida?
A memorandum of lease is a short recorded document that gives public notice that a lease exists and summarizes key terms, such as the term and any purchase or offer rights, without recording the full lease. It protects the tenant against later buyers, but its scope depends on what it actually says.
Talk to a Florida landlord-tenant and real estate lawyer
Weidner Law, P.A. handles Florida lease, eviction and real estate disputes from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
