Thе sole question presented for our resolution is whether the Massachusetts lis pendens procedure, *560 G. L. c. 184, § 15, violates the due process clause of the Fourteenth Amendment to the United States Constitution. We hold it does not.
These two cases are before us on a report from a judge of the Superiоr Court, pursuant to Mass. R. Civ. P. 64,
Lis pendens means “pending suit.” Under the common law doctrine of lis pendens, the mere existence of litigation involving title to real property was deemed constructive notice to the world, so that anyone who purchased the disputed property while the suit was pending was bound by the judgment ultimately rendered. See
Steele
v.
Estabrook,
General Laws c. 184, § 15, first appearing in St. 1877, c. 229, ameliorated the harsh effects of the common law *561 rule on good faith transferees unaware of pending litigatiоn concerning the property. Under the statute, the judgment of the court in litigation affecting real property is no longer binding on those acquiring an interest in the property unless a memorandum of lis pendens was filed in the registry of deeds before the acquisition, reciting the names of the litigants, the court in which the suit is pеnding, the date the suit was brought, and a description of the real property liable to be affected by the suit. 5 A memorandum, of lis pendens may be filed only when litigation “affects the title to real property or [its] use and occupation.” Once the underlying litigation is terminated, whether by a judgment on the merits, dismissal, or othеr final disposition, a certificate of the disposition may be recorded in the registry of deeds in which the lis pendens was filed. G. L. c. 184, § 16. 6
The statute is cast in terms of a limitation on the scope of the common law rule; it does not purport to create a new right, interest, or remedy in the litigant filing the memorandum of lis pendens. By putting anyone interested in real *562 estate that is in dispute on notice of the dispute, the statute ensures that a prospective third-party transferee can, with the exercise of reasonable prudence, acquire information relevant to a decision whether to consummate the transаction.
The property owners in the cases before us do not challenge the logical purpose of the lis pendens statute; they agree that notice of pending litigation affecting title to real estate and the orderly recording of that notice are beneficial to the public. They contend rather that the filing of a memorandum of lis pendens restricts their ability to sell or encumber their property, depriving them of a significant property interest. Given this deprivation, the property owners claim that the statutes governing lis pendens are constitutionally defective in their failure to provide an opportunity for a hearing prior to the filing of the memorandum in the registry of deeds.
7
This constitutional challenge derives largely from decisions of the United States Supreme Court invalidating statutory prejudgment creditor remedies as violative of the due process clause of the Fourteenth Amendment.
Sniadach
v.
Family Fin. Corp.,
The thrust of these Supreme Court cases is that when, as a result of State action, an owner of property is deprived of a significant property interest, the due process clause of the Fourteenth Amendment is implicatеd so as to require notice and some kind of timely hearing. In
Sniadach,
for example, the State garnishment procedure enabled a creditor to freeze half the wages due an alleged debtor, without according the latter any opportunity to be heard. In articu
*563
lating the basis for the Court’s holding that this procedure did not conform to procedural due process requirements, Justice Harlan explained that “[t]he ‘property’ of which petitioner has been deprived is the
use
of the garnished portion of her wages during the interim period between the garnishment and the culmination of the main suit. Since this deprivation cannot be characterized as
de minimis,
she must be accorded the usual requisites of procedural due process: notice and a prior hearing” aimed at establishing the probable validity of the underlying claim (emphasis in original).
The Supreme Court later applied the Sniadach rationale to other situations in which the State, in aid of a creditor, deprived a property owner of actual possession and enjoyment of tangible personal property. See Fuentes v. Shevin, supra (invalidating statute authorizing State agents to seize personal property in possession of an alleged debtor, virtually at will of creditor); North Georgia Finishing, Inc. v. Di-Chem, Inc., supra (striking down garnishment statute under which corporate bank account was impounded and put totally beyond use of depositor during pendency of litigation on alleged debt). 8
No deprivation of comparable magnitude has taken place here. The filing of a memorandum of lis pendens does not result in seizure of the property or dispossession of the property owner. Nonetheless, a deprivation at the hands of the State need not reach the magnitude of a seizure to fall within the scope of the due process clause. See Fuentes v. Shevin, supra at 91 n.23. Thus we must consider the nature of the deprivation alleged here.
*564
A memorandum of lis pendens, like an attachmеnt of real estate, temporarily restricts the power of a landowner to sell his or her property, by depriving the owner of the ability to convey clear title while the litigation is pending.
9
Besides burdening the right of alienation, the existence of a lis pendens notice interferes with the owner’s ability to obtain finаncing on the property. In the attachment context, the impairment of both marketability and mortgageability has been viewed as a deprivation of a significant property interest within the protection of the Fourteenth Amendment, leading to judicial invalidation of State statutory procedures that authorize prejudgment attachments of real estate without first giving the property owner notice and an opportunity to be heard. See, e.g.,
Bay State Harness Horse Racing
&
Breeding Ass'n
v.
PPG Indus., Inc.,
Although we acknowledge the substantial economic effects that can result from the filing of a lis pendens notice (effects that mirror those resulting from the use of a real estate attachment), we do not think that these effects constitute a significant enough deprivation by the State so as to require that the landowner be given an opportunity to be heard in advanсe of filing.
Fuentes, Sniadach, North Georgia, and the real estate attachment cases cited above all involved a private dispute between private parties in which the State, through some statutory mechanism, stepped in for the purpose of aiding one side to the dispute. 11 Here, although we have a private dispute bеtween private parties, the mechanism added by the State is not designed to aid either side in the dispute. Rather, the lis pendens mechanism is designed primarily to protect unidentified third parties by alerting prospective purchasers of property to what is already on the public record — the fact оf a suit involving the property. The level of State involvement in the lis pendens procedure is minimal: a clerk at the registry of deeds merely accepts the memorandum of lis pendens from a private litigant desiring to file it. A private individual with both the resources and the interest in alerting potential buyers would be freе to publicize the fact that he is a party to a lawsuit involving certain property. 12 By allowing the filing of a memorandum
*566 of lis pendens in the place where potential buyers are most likely to find it, the State is doing little more than a private individual is free to do. Whatever role the State plays in the lis pendens procedure is far less than that present in prejudgment seizure or attachment procedures. 13
Further supporting the constitutionality of the lis pendens statute is the recognition that a memorandum of lis pendens does nothing that a conscientious seller of property would not do as a matter of course. A property owner offering to sell or mortgage property typically represents that he has good title to the property and that he is, in fact, free to sell or encumber it. In these circumstances, a false representation of title may give rise to a cause of action in fraud or deceit. 14 Further, although silence in sоme cases may not give rise to a cause of action, considerations of fairness would ordinarily prompt the seller of property that is the subject of a legal dispute to inform potential buyers or mortgagees of the existence of that dispute. A notice of lis pendens does just that. The landоwner is being deprived of no more than the ability to alienate property without informing the prospective transferee of the existence of litigation involving the property. This is not a deprivation worthy of due process protection beyond that inhering in the underlying litigation itself. 15
*567 As the Supreme Court’s decisions demonstrate, determining when and how much process is due requires sensitivity to the exact nature of the particular property deprivation worked at the hands of the State. 16 Here, considering the State’s minimal involvement and the simple notice function of the lis pendens procedure, we concludе that the process provided in the underlying litigation on the property dispute is sufficient, and therefore G. L. c. 184, § 15, does not violate the due process clause of the Fourteenth Amendment. Accordingly, the judge’s ruling upholding the constitutionality of the statute was correct.
So ordered.
Notes
In the Debral Realty case, the facts as stated in the judge’s mеmorandum of decision conflict with those appearing in the defendant DiChiara’s brief and in the pleadings of the parties. All agree that a memorandum of lis pendens was filed on DiChiara’s property in Saugus; but, according to the complaint, and contrary to statements of the judge, the suit by Debral Realty does nоt involve a dispute over a promissory note secured by a mortgage on the Saugus property. Rather, the note in dispute is secured by property located in a different town, property that does not appear to have been involved in any transaction between Debral Realty and DiChiarа. As the judge reported only the question of the propriety of his ruling upholding the constitutionality of G. L. c. 184, § 15, however, that is our sole concern here, and not whether the lis pendens memorandum was properly filed under the statute. See notes 5 and 6, infra.
The full text of G. L. c. 184, § 15, as amended by St. 1941, c. 88, reads: “A writ of entry or other proсeeding, either at law or in equity, which affects the title to real property or the use and occupation thereof or the buildings thereon, shall not have any effect except against the parties thereto, their heirs and devisees and persons having actual notice thereof, until a memorаndum containing the names of the parties to such proceeding, the court in which it is pending, the date of the writ or other commencement thereof, the name of the town where the real property liable to be affected thereby lies and a description of such real property sufficiently аccurate for identification is recorded in the registry of deeds for the county or district where such real property lies; but this section shall not apply to attachments, levies of execution or proceedings, other than proceedings under equity jurisdiction, in the probate courts.”
Note that the judgment remains binding on anyone with actual notice of the pending litigation.
Although the statutes do not expressly authorize vacating a lis pendens before the termination of the underlying litigation, the court has the power to dissolve the lis pendens without delay, if the litigation does not affect the real property аs required by § 15. We need not consider whether other situations might justify the early dissolution of a lis pendens.
This issue was raised but not decided in
Vincent Realty Corp.
v.
Boston,
In
Mitchell
v.
W.T. Grant Co.,
We stress that the landowner is not prohibited from alienating or encumbering the property subject to lis pendens. Although alienation may be more difficult, there is nothing to prevent the sale if the landowner can find a willing buyer.
On the basis of
Fuentes
v.
Shevin,
An attachment of property in Massachusetts, for example, creates a “specific charge upon the property, for the security for the debt sued for, and the property is set apart and placed in the custody of the law, for that purpose . . . .”
Kohler
v.
Marshfield,
Such an individual would, of course, be subject to obligations of good faith regarding the litigation; we are not dealing here with groundless or spurious lawsuits.
The attachment statutes invalidated in the cases cited earlier authorized a writ of attachment to be issued by a court clerk and executed by a sheriff, thereby creating an immediate lien on the property attached for the benefit of the creditor. By so doing, the attachment procedures created legal rights on behalf of one party (the creditor) in the underlying action.
See Lyman v. Romboli,
To some extent, baseless lawsuits against the property owner may be quickly disposed of before trial by motions to dismiss, motions for judgment on the pleadings, and motions for summary judgment. See Mass. R.
*567
Civ. P. 12 (b) (6), and 12 (c),
It can be said that the Supreme Court’s decisions themselves have been marked by some inconsistency. Compare
Sniadach
v.
Family Fin. Corp.,