A lis pendens is a powerful document that should only be used when the situation justifies it. Lis pendens is a Latin term for “suit pending.” It’s filed with a county’s recorder office to put others on notice the legal status of the property is uncertain due to pending legal action.
If one’s filed, no one in their right mind would want to do anything with this property (including buy it or use it as collateral for a mortgage). This is not only a warning to others, but it clouds the title and, as a practical matter, prevents the defendant from doing anything with the property, so it effectively puts a halt to the property owner’s plans.
The lis pendens clouds the title until the lawsuit’s resolved and it’s removed (or expunged). The lis pendens binds subsequent parties to the lawsuit’s outcome. If you buy a property subject to a lis pendens from purported owner Joe, but the legal claim’s outcome is that Pete’s the actual owner, you’ve thrown away the money you paid to Joe because he had no right to sell it to you.
Easily Transferring Property Is Good Until It’s Bad
Generally, our laws and courts promote the idea that real property should be freely and completely transferable. But disputes often arise between parties involved with property. A plaintiff may claim the owner can’t transfer the property because they’re entitled to it.
California statute states,
“Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.”
The notice must have the names of the parties involved in the action and a property description. A real property claim is one that, if successful, would impact:
• Its title
• The right to possess it, or
• The use of an easement identified in the pleading, not an easement created through a state statute or regulated public utility
Issues involving a lis pendens recording go beyond disputed ownership. They can include a lease or whether someone has a right to cross your property to get elsewhere.
Abuse Lis Pendens Recordings at Your Peril
There are rules to try to limit the harm caused by mishandled lis pendens filings:
• Only licensed California lawyers may record one at the start of litigation
• Self-represented parties filing a real property lawsuit can record a lis pendens if the judge agrees after filing a formally noticed motion
A higher and possibly more expensive hurdle for the party wanting to record a lis pendens is it can be removed if they can’t establish the “probable validity” of the underlying lawsuit by a preponderance of the evidence (it’s more likely than not the party asserting the real property claim will win a judgment in their favor).
If the opposing party files a motion to expunge it, the court will have a “mini-trial” on the claim’s merits. If a judge decides the lis pendens should be removed because the plaintiff can’t prove the probable validity of the claims, the plaintiff will pay the defendant’s attorney’s fees and costs. Recording a lis pendens without filing a related lawsuit also has consequences – the property owner may sue you for slander of title.
We’re Here to Help
If you think you may have grounds to sue another party due to a real estate dispute or fear you may be the defendant in one, Anthony Burton can help. Call us at (949) 244-4207 or fill out our contact form today. We can discuss your situation, how California law may apply, and what you should do next.
