Lis Pendens Vacatur Upon Determination: Interpreting Section 123(a)(i) in Martin v O’Keeffe

Introduction

The High Court judgment in Martin v O’Keeffe & Anor ([2025] IEHC 272) addresses the circumstances in which a lis pendens, registered under the Land and Conveyancing Law Reform Act 2009 (“the Act of 2009”), may be vacated. The plaintiff, Mr Conor Martin, had registered a lis pendens over a Dublin property known as the “Beach Tavern” following a dispute about his right of first refusal (an option) to purchase. After a series of interlocutory and final judgments (the Option Judgment, the 2022 Order and the Variation Judgment), the defendants, Ray and Etna O’Keeffe, applied under section 123 of the Act of 2009 to vacate that lis pendens. Ms Justice Nessa Cahill’s decision clarifies the correct statutory basis for vacatur once proceedings have been determined and refutes the notion that post-determination delay in “exercising” rights may sustain a lis pendens.

Case Background and Key Issues

Parties: Conor Martin (plaintiff and litigant in person) vs. Ray O’Keeffe and Etna O’Keeffe (defendants).
Subject Matter: An option to purchase the Beach Tavern property in Irishtown, Dublin.
Procedural History:
- September 2018: Plaintiff issues proceedings and registers lis pendens.
- March 2021 (Option Judgment): Court finds an option price of €725,000.
- January 2022 (2022 Order): High Court confirms plaintiff’s right to purchase at €725,000.
- October 2024–January 2025 (Variation Judgment): Court refuses to vary or dissolve the 2022 Order.
- March 2025: Defendants move to vacate the lis pendens under section 123 of the Act of 2009.
Key Legal Question: Whether section 123(a)(i) or (a)(ii) of the Act of 2009 permits vacatur of a lis pendens after final determination of proceedings, and whether post-judgment delay in exercising an option counts as “unreasonable delay in prosecuting the action.”

Summary of the Judgment

Ms Justice Cahill granted the defendants’ motion to vacate the lis pendens on the basis of section 123(a)(i), which allows vacatur “where the action to which it relates has been … determined.” She held that:

The lis pendens was registered in September 2018 and plainly served its purpose during the active litigation.
By March 2021 and February 2022, the proceedings were finally determined (Option Judgment and 2022 Order), and no appeal was taken.
The plaintiff made no valid attempt to complete the sale at the agreed price of €725,000 and instead proposed unilateral deductions for legal costs.
Section 123(a)(ii) (unreasonable delay in prosecuting the action) does not apply once proceedings are determined; it addresses delay during the pendency of litigation.
Accordingly, the lis pendens must be vacated; the defendants’ property rights should not remain indefinitely frozen.

Analysis

Precedents Cited

Tola Capital Management LLC v Linders (No 2) [2014] IEHC 324: Cregan J. set out the purpose of lis pendens as a freeze on disposition of property pending resolution, akin to an interlocutory injunction without undertaking as to damages.
Carthy v Harrington [2018] IECA 321 & Hurley Property ICAv v Charleen Ltd [2018] IEHC 611: Both address unreasonable delay under section 123(a)(ii) during active litigation but do not support its application post-determination.

Legal Reasoning

The Court’s reasoning unfolds in three steps:

Statutory Interpretation of Section 123:
- Section 123(a)(i) plainly empowers vacatur “where the action … has been discontinued or determined.”
- Section 123(a)(ii) contemplates delay “in prosecuting the action” and presupposes ongoing proceedings.
Application to the Facts:
- The underlying proceedings were fully determined by the Option Judgment and the 2022 Order.
- The plaintiff’s failure to complete the purchase, and his offers with deductions, were addressed in the Variation Judgment.
- No appeal means the determination is final; the lis pendens has served its purpose.
Discretion and Purpose:
- A lis pendens is a blunt instrument that “freezes” property while litigation is live.
- To prevent abuse and indefinite restraint, the court must vacate it once the action is no longer pending.

Impact

This decision is significant for several reasons:

It confirms that section 123(a)(i) is the sole statutory basis to vacate a lis pendens after final determination of the underlying action.
It limits the reach of section 123(a)(ii) to delays during active litigation, thus preventing litigants from using a lis pendens as leverage long after judgment.
It provides practitioners with clear guidance on the lifespan of a lis pendens and on the necessity of seeking vacatur promptly once proceedings conclude.
It underscores the importance of finality in property litigation and protects landowners against indefinite encumbrances.

Complex Concepts Simplified

Lis Pendens: A Latin term meaning “pending suit.” When registered against land, it prevents sale or mortgage until the related lawsuit is resolved.
Specific Performance: An equitable remedy requiring a party to perform contractual obligations (here, to sell the property).
Option to Purchase: A contractual right to buy property at a pre-agreed price within a specified period.
Vacatur: The removal or setting aside of a prior order or encumbrance—here, the lis pendens.

Conclusion

The High Court’s decision in Martin v O’Keeffe establishes a clear precedent: once litigation is finally determined, the appropriate route to vacate a lis pendens is under section 123(a)(i) of the Act of 2009. Post-judgment inaction by a claimant does not equate to “unreasonable delay in prosecuting the action” under section 123(a)(ii). This ruling limits the potential misuse of lis pendens as a perpetual encumbrance and reinforces finality in property disputes. Landowners and practitioners should note both the scope and the temporal limits of a lis pendens when advising or applying for its registration or vacatur.