Understanding the Lis Pendens (Notice of Pending Action)
By: D. Keith Dunnagan, Esq.
June 20, 2023
We are often asked by parties to real estate litigation, what is it that protects my rights as a litigant? Lawsuits take time and there is no certainty that my rights will be protected if a defendant decides to transfer or cloud title regarding a property that is the subject of litigation. This uncertainty creates an angst for the plaintiff who is about to embark on a legal claim. The law provides that when there is litigation in which the plaintiff asserts a real property claim which would affect title to, or the right to possession of, specific real property or the use of an easement the plaintiff may record a notice of pendency of action, or “lis pendens”.
This notice of a pending lawsuit provides constructive notice to subsequent purchasers or encumbrancers that there is a real property claim pending in court that could affect title to or possession of real property. Most states, including Washington, California and Nevada are race notice states any subsequent transferee would take subject to the outcome of the litigation. Because the notice puts a subsequent transferee on notice of the litigation that transferee would take the property subject to the claim and would be prohibited from asserting a defense as a bona fide purchaser.
A lis pendens may only be recorded after a lawsuit has been filed and may not be used as a preemptory tool prior to the commencement of litigation. More importantly it is essential to have an attorney involved in this process as an attorney can record a lis pendens upon the filing of the complaint whereas an individual acting in pro per would be required to seek permission from the court to file a lis pendens. The following actions require a lis pendens: quiet title, partition, eminent domain, lost land records, clouds upon title, certain probate actions and specific performance actions.
Once a notice of pendency of action has been recorded, any party, or any nonparty with an interest in the affected real property, may apply to the court to expunge the notice. However, a person who is not a party to the action must obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The court must order the notice of pendency of action expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court must also order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.
The court must direct that the party prevailing on any motion for expungement be awarded the reasonable attorney fees and costs of making or opposing the motion, unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney fees and costs unjust.
The lis pendens is a powerful and effective tool to protect a plaintiff’s claim rights to a property. It is important that litigants understand how these devices work and their benefits and obtain competent legal counsel to assist in matters that would involve a lis pendens.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.
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By: D. Keith Dunnagan, Esq.
June 20, 2023
We are often asked by parties to real estate litigation, what is it that protects my rights as a litigant? Lawsuits take time and there is no certainty that my rights will be protected if a defendant decides to transfer or cloud title regarding a property that is the subject of litigation. This uncertainty creates an angst for the plaintiff who is about to embark on a legal claim. The law provides that when there is litigation in which the plaintiff asserts a real property claim which would affect title to, or the right to possession of, specific real property or the use of an easement the plaintiff may record a notice of pendency of action, or “lis pendens”.
This notice of a pending lawsuit provides constructive notice to subsequent purchasers or encumbrancers that there is a real property claim pending in court that could affect title to or possession of real property. Most states, including Washington, California and Nevada are race notice states any subsequent transferee would take subject to the outcome of the litigation. Because the notice puts a subsequent transferee on notice of the litigation that transferee would take the property subject to the claim and would be prohibited from asserting a defense as a bona fide purchaser.
A lis pendens may only be recorded after a lawsuit has been filed and may not be used as a preemptory tool prior to the commencement of litigation. More importantly it is essential to have an attorney involved in this process as an attorney can record a lis pendens upon the filing of the complaint whereas an individual acting in pro per would be required to seek permission from the court to file a lis pendens. The following actions require a lis pendens: quiet title, partition, eminent domain, lost land records, clouds upon title, certain probate actions and specific performance actions.
Once a notice of pendency of action has been recorded, any party, or any nonparty with an interest in the affected real property, may apply to the court to expunge the notice. However, a person who is not a party to the action must obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The court must order the notice of pendency of action expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court must also order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.
The court must direct that the party prevailing on any motion for expungement be awarded the reasonable attorney fees and costs of making or opposing the motion, unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney fees and costs unjust.
The lis pendens is a powerful and effective tool to protect a plaintiff’s claim rights to a property. It is important that litigants understand how these devices work and their benefits and obtain competent legal counsel to assist in matters that would involve a lis pendens.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.
Recent and Popular Articles From Our Blog:
2020 Blogs:
· April 28 – A New Reality – Temporary or Permanent – Virtual Showings and Disclosures
· May 22 – Servant Leadership
· June 8 – Paycheck Protection Program Flexibility Act is Enacted
· June 10 – Impact to Credit Score After Filing Chapter 7 Bankruptcy
· June 26 – SBA Rolls Out Updated PPP Loan Forgiveness Application
· July 2 – Understanding the Home Equity Sales Contract Act 2020
· July 14 – Governor Rolls Back Re-Opening
· August 4 – August 2020 COVID-19 Update
· August 18 – Status Of Selected California State Operations re: COVID-19
· September 1 – COVID Update on Foreclosures and Evictions
· September 3 – State Passes AB 3088
· September 15 – Update on PPP Forgiveness and Impacts
· November 10 – Changes to the Fair Housing and Discrimination Advisory CAR Form
· November 24 – In a Season of Difficulty – We Choose Gratitude
· December 15 – Cal/OSHA Issues New COVID Prevention Rule
2021 Blogs
· January 5 – Introduction to New Laws 2021
· January 26- Rain and the Prevalence of Failure to Disclose Claims
· February 2 – California Enacts COVID Tenant Relief Act (SB 91)
· March 9 – Understanding the Trust Exception to Real Estate Disclosures
· April 20 – Cash for Keys and SB 91
· May 4 – Help! Tenant Won’t Cooperate with Sale of Home
· May 11 – California Passes AB 80
· June 15 – Pinhole Leaks in Copper Pipes in Folsom