The Uses and Abuses of a Lis Pendens
California law provides a common-sense way of putting prospective lenders and purchasers of real property on notice of a legal dispute involving the property: the “Notice of Pendency of Action,” also known as a “lis pendens.” The process involves recording on title a legal document describing the lawsuit. Properly executed and recorded—and there is a specific set of rules involved—a lis pendens places the world on notice that a dispute exists, and thereby prevents the property from being freely transferred or encumbered while the lawsuit is pending.
A lis pendens is proper, however, only when the legal dispute involves the “title to” or “right to possession of” the property, or, in some cases, the use of an easement. It is important to note that these are legal terms with a particular meaning developed by statute and case law. For that reason, there is no substitute for a consultation with an experienced real property litigator.
Unfortunately, the lis pendens laws are often abused by parties seeking an advantage in litigation by “tying up” an opponent’s real property, even though the property itself may not be at issue in the lawsuit. The law provides a remedy for this in the form of a motion for an order “expunging” an improperly recorded lis pendens. A party may also seek expungement where, among other things, the technical requirements for recording and service of the lis pendens have not been met; where the claimant has not proven the probable validity of the underlying claim by a preponderance of the evidence; or where it is established that monetary relief would be an adequate remedy. The party prevailing on such a motion may be entitled to recover the attorney’s fees and costs incurred in seeking expungement. California case law also provides a possible damages remedy under the legal doctrine of “slander of title.” And a separate procedure exists for compelling the claimant to post a bond or other undertaking as a condition of maintaining the lis pendens of record. Again, there is no substitute for a consultation with an experienced real property litigator.
If you have questions about a lis pendens affecting your property, or if you believe you may be entitled to record a lis pendens against property owned by another party, contact us at Adair Law Corporation.
By: Lance A. Adair
Founder and Principal Attorney