What is a lis pendens?  

A recorded lis pendens puts all persons on constructive notice that the title or right to the possession of real estate is in litigation. More commonly, a lis pendens is called a Notice of Pending Action.

The purpose of recording a lis pendens is to preserve a person’s right to the real estate until the dispute with the owner is resolved. Thus, buyers who acquire an ownership interest in property after a lis pendens describing the property has been recorded take their interest in the property subject to someone else’s (the claimant’s right).

Without a recorded lis pendens or physical possession of the real estate, the person who claims an interest in title or the right to possession runs the risk the owner will encumber of convey the property to another buyer, lender or tenant who is unaware someone else already holds an interest in the property.

Title or possession to real estate

A lawsuit needs to affect title or the right to possession of real estate to support the recording of a lis pendens. [Code of Civil Procedure §405.20]

Lawsuits affecting title or possession of real estate include:

  • specific performance of an unclosed transaction or rescission of a closed transaction [Wilkins Oken (1958) 157 CA 2d 603];
  • judicial foreclosure of a trust deed lien by a lender [Bolton Logan (1938) 30 CA2d 30];
  • foreclosure of a mechanic’s lien by a construction contractor [Calif. Civil Code §8461];
  • cancellation of a grant deed or other conveyance by a prior owner;
  • fraudulent conveyance to be set aside as voidable by creditors [Hunting World, Incorporated Superior Court (1994) 22 CA4th 67];
  • evictions and suits concerning unexpired leaseholds brought by tenants or leasehold lenders;
  • termination or establishment of an easement between neighboring property owners [Kendall-Brief Company Superior Court of Orange County (1976) 60 CA3d 462];
  • government declaration that a building is uninhabitable;
  • ejectment of an unlawful occupant other than a tenant from real estate by an owner;
  • partition or sale of the real estate by a co-owner;
  • quiet title;
  • eminent domain actions [CCP §1250.150]; and
  • divorce proceedings involving real estate.

Real estate lawsuits

 A lis pendens is also permitted in the following lawsuits over real estate:

  • actions by adverse possessors to determine claims to real estate [CC §1007];
  • actions to re-establish lost land records [CCP §751.13];
  • actions to determine adverse interests in any liens or clouds on real estate arising out of public improvement assessments [CCP §801.5];
  • actions by purchasers or the state to quiet title to tax-deed property [Calif. Revenue and Taxation Code §3956];
  • actions by innocent improvers of real estate against owners or lenders of record [CC §1013.5(h);
  • actions on an improvement bond [Calif. Streets and Highway Code §6619]; and
  • actions terminating or establishing an easement, except for a public utility easement. [CCP §405.4(b)]

The lis pendens process

To record a lis pendens, the lis pendens is required to:

  • identify the parties to the lawsuit; and
  • give an adequate description of the real estate. [CCP §405.20]

While the object of the lawsuit and its effect on title or possession of real estate does not need to be stated in the lis pendens, the objective of the lawsuit is to be stated in the lis pendens for it to be considered an absolutely privileged publication. [CC §47(b)(4)]

Editor’s note — An absolute privilege covers any publication during a judicial proceeding which is authorized by law, including a lis pendens. A publication made under absolute privilege bars a slander of title action against the person wrongfully claiming an interest in the property.

Related video: Word-of-the-Week: Slander of Title

A technical legal description of the property subject to litigation is not required as long as the property can be sufficiently identified.

Notice by recording and indexing

A lis pendens is formally of record when it is filed and indexed in the county recorder’s office of the county where the property is located. [CCP §405.20]

Recording and indexing a lis pendens constitutes constructive notice to all persons about the existence of a dispute over title of possession of a property. Any buyer, lender or tenant who is later conveyed an interest in the property is bound by the final resolution of the dispute.

Title insurers and specific performance actions

Title companies usually refuse to insure title when a lis pendens is recorded which involves a specific performance action. Without title insurance, buyers will not buy, lenders will not lend and tenants will not occupy the property –  essentially, the property is tied up until the litigation is resolved.

As a result, property subject to specific performance actions by buyers is often rendered unmarketable while the lis pendens remains in effect.

The tremendous value of the lis pendens to litigating buyers is its ability to preserve the buyer’s right to purchase the property. The recording of a lis pendens often persuades a hedging seller to perform.

Accordingly, the potential for abuse of the lis pendens procedure to cloud title of an owner’s property is readily apparent.

Expungement of a lis pendens 

Any time after a lis pendens has been recorded, anyone with an interest in the property affected may file a motion asking the court to remove the lis pendens from the record, called expungement.

An order expunging a lis pendens removes from title any restrictions sought to be imposed by the lawsuit on the transfer of property. [CCP §405.61]

History behind the word 

Lis pendens is Latin for pending litigation, roughly translated to “while the suit is pending; during the litigation.”  Lis refers to a lawsuit or a quarrel.