This article reviews the events which allow a property owner to recover for the slander of his title.


Real estate interests

Slander of title applies to any marketable interest in real estate which is assignable, transferable or capable of being sold. A real estate interest includes the fee simple, a leasehold, an easement and covenants, conditions and restrictions (CC&Rs) – not just the vested title. [Rest.2d Torts §624]

For example, an owner and his neighbor have owned adjacent parcels for over 20 years.

A previous owner of the two adjacent parcels reserved the rear 43 feet of both parcels for road and utility purposes when he sold the properties. The portion reserved was never used by the seller or for purposes as stated in the reservation.

Both the current owner and his neighbor have always believed their actual boundaries included the reserved roadway parcels.

The owner builds his personal residence on his parcel, encroaching on the roadway parcel to the rear of his parcel. The neighbor initially uses his parcel and the roadway parcel to the rear of his parcel openly, and even pays the property taxes on the roadway parcel reserved from his title.

However, the neighbor does not file a judicial action to establish record title to the rear roadway parcel. The owner whose residence encroaches on the roadway parcel lists his parcel for sale.

The owner’s broker pulls a title profile and discovers the roadway parcel is not vested in the name of the owner or the neighbor. An argument about the ownership of both roadway parcels ensues between the owner’s broker and the neighbor.

The broker then arranges for the owner to purchase both roadway parcels extending behind the rear of both properties. The owner’s parcel and both roadway parcels are then acquired by a buyer. The buyer is not advised of the neighbor’s claims of title by adverse possession to one of the roadway parcels.

After closing, the neighbor seeks money losses from the broker for slander of title regarding the roadway parcel. Further, the neighbor files an adverse possession action against the new owner to quiet title to the roadway parcel.

The broker claims he did not slander the title since title by adverse possession is not a property interest which can be slandered.

Can the broker slander title which is to be perfected by adverse possession?

No! The broker cannot be held liable for slander of title since he arranged the sale of the property as reflected by its recorded title. The neighbor did not hold legal title at the time of the broker’s actions. The neighbor must first complete a judicial proceeding establishing record title by adverse possession before his interest can be slandered.

The policy behind bringing a slander of title action is to protect the marketability of title for a potential sale of property. Title acquired by adverse possession is not marketable until the title is established by judicial proceedings against the record owner – which is now the buyer.

The broker did not interfere with the neighbor’s ability to sell the portion of the roadway parcel he claims to own since the neighbor did not have marketable title to the property when the broker sold it. [Howard v. Schaniel (1980) 113 CA3d 256]

Editor’s note — The broker is required to indemnify the buyer for the costs of quieting title since the broker failed to disclose to the buyer a condition of title known to him – the neighbor’s unrecorded claim to the property by adverse possession.


A privileged publication about a real estate interest does not subject an individual to liability for slander of title.

Two types of privileges exist:

  • conditional privilege; and
  • absolute privilege.

A conditional privilege is a defense to an owner’s claim of slander of title arising out of a communication made by a person about an interest in real estate without malice towards the owner of the interest. The communication is legally called a publication. [Calif. Civil Code §47(c)]

A conditionally privileged communication includes the filing of a lawsuit brought in good faith, or disputing a right or interest in real estate, such as a claim of ownership by way of prescriptive easement. [Spencer v. Harmon Enterprises, Inc. (1965) 234 CA2d 614]

The conditional privilege is lost, and the published comment is slanderous, when the person making the communication acts with malice. [CC §47(c)]

Malice can be:

  • actual; or
  • implied.

Actual malice, also called malice in fact, may be shown by the lack of justification for a person’s communication when the person acts with ill will and the desire to do harm to the owner of the slandered interest. Actual malice is done just for the satisfaction of causing damage.

While the existence of malice is essential for the owner to overcome the defense of a conditional privilege, actual malice is not required for the owner to prevail in a slander of title action. Implied malice will suffice.

Malice may be implied from conduct showing the person causing the disparaging publication is not acting in good faith, also called malice in law. Malice is inferred from the actions of an individual who is attempting to establish a claim which is not valid.

Thus, if the individual who slanders title can show his publication was made in good faith, asserting what he honestly believed to be a valid claim of title, then the individual cannot be held liable for slander of title.

For example, an owner executes a note in favor of a private lender secured by a trust deed on real estate. Later, a bank makes a loan secured by a trust deed on the same property. The title insurance company erroneously insures the priority of the bank’s trust deed as senior to the private lender’s trust deed.

Later, the private trust deed lender attempts to foreclose as the senior lienholder. A dispute in priority between the private lender and the bank ensues. The private lender’s trust deed is declared to be senior to the bank’s trust deed.

The private lender then initiates a slander of title action against the title company. The private lender seeks to collect his out-of-pocket money losses caused by the delay in foreclosure, due to the uncertainty of his trust deed’s priority resulting from the erroneous priorities stated in the title insurance policy.

However, the private lender is unable to show the title company acted maliciously towards him when they issued the title policy.

Is the title insurance company liable to the private lender for slander of title?

No! The title insurance company’s policy issued to the bank is conditionally privileged. The private lender cannot show malice toward him exists on the part of the title company based on the erroneous priority of trust deeds in the policy of title insurance.

More importantly, a title insurance policy does not constitute a publication. A title insurance policy is not an abstract of title, and does not warrant that conditions or defects in title do not exist. Under a title insurance policy, the title company only assumes the risk of the insured’s losses due to an undisclosed defect or error. [Smith v. Commonwealth Land Title Insurance Company (1986) 177 CA3d 625]

Absolute privilege

A publication which falls under an absolute privilege bars a slander of title action, even if the publication is made with actual malice.

A communication protected as an absolute privilege is any publication during a legislative, judicial or other official proceeding authorized by law. [CC §47(b)]

For example, a creditor brings an action seeking a money judgment against the owner and a lien on the owner’s property. The creditor records a lis pendens which clouds title to the owner’s property. The creditor loses the suit.

In a slander of title action, the owner seeks money damages from the creditor for recording the lis pendens.

The creditor claims the recordation of a lis pendens is absolutely privileged, barring the owner from recovery in a slander of title action.

The owner claims the lis pendens is not absolutely privileged since it was not made in a judicial proceeding, such as pleadings and communications of the judge, parties, witnesses, etc.

Is the recording of a lis pendens absolutely privileged?

Yes! A recorded lis pendens which identifies the court action concerning the title or right of possession to real estate is an absolutely privileged publication. [CC §47(b)(4)]

A properly filed lis pendens must identify all parties to the lawsuit and give an adequate description of the real estate. The object of the lawsuit does not need to be stated in the lis pendens. [Calif. Code of Civil Procedure §405.20]

Absolute privilege applies to any publication required by law in the course of a judicial proceeding to achieve the objectives of a final judgment in the litigation, even if made outside the courtroom – as is a lis pendens. [CC §47(b)]

Papers filed during court proceedings are absolutely privileged from a slander of title lawsuit. Absolute privilege applies to the recordation of a lis pendens since its use is authorized to give constructive notice of a claim against property in pending litigation. [Albertson v. Raboff (1956) 46 C2d 375]

Editor’s note — The remedy for an improperly recorded lis pendens is to have the lis pendens expunged and collect damages caused by the recording of the lis pendens, or proceed with a malicious prosecution action. [CCP §405.30; Calif. Penal Code §1447]

Now consider a creditor who is awarded a judgment against an individual, called a judgment debtor. Later, the judgment debtor marries an individual who is the vested owner of real estate.

After the marriage, the creditor records a writ of execution (issued by the court) as a levy on all real estate in the owner’s name. The levy attaches as a lien on the owner’s separate property, property acquired by the owner before the marriage to the judgment debtor.

The property owner demands the lien be removed, informing the creditor:

  • the judgment debtor does not have an interest in the property; and

  • the property owner is not a party to the action creating the judgment.

The creditor refuses to remove the lien claiming married individuals are responsible for each other’s debts.

The owner locates a ready, willing and able buyer who refuses to complete the transaction when the buyer (and the title insurer) learn of the creditor’s lien. The property’s value decreases as a result of the creditor’s lien.

The owner sues to quiet title and for slander of title to collect his money losses from the creditor claiming the lien was placed on the real estate without justification.

The creditor claims the recording of the writ of execution is an absolutely privileged publication, performed as part of a judicial proceeding.

However, the court ordered levy is not privileged. The levy on the property under the writ of execution was not obtained in good faith by the creditor with the honest belief the judgment debtor had an interest in the property of the spouse. Thus, the creditor is liable for out-of-pocket money losses caused by his slander of the owner’s title. [Gudger v. Manton (1943) 21 C2d 537]




To impose liability, an
individual’s slanderous publication need not be made for the purpose of
directly influencing another person’s conduct.

The individual is liable for the
owner’s losses if it is reasonably foreseeable his slanderous
publication will be relied upon by another person, whose reliance causes the
owner to suffer a money loss. [Rest.2d Torts §623A, comment b]

Thus, no basis exists for slander
of title if the owner does not suffer out-of-pocket losses due to the
disparaging remarks.

For example,
a buyer and seller enter into a purchase agreement and open escrow. A
neighboring owner makes statements to the buyer concerning a possible defect in
the property’s soil condition.

The seller assures the buyer the
neighbor’s statements are untrue and escrow closes. The seller incurs no
money damages as a result of the neighbor’s statements, only aggravation
and lost time.

Later, the seller
claims the neighbor’s statements slandered his title.

However, the seller has no claim
against the neighbor for slander of title. The neighbor’s statements did
not prevent the sale of the property at its full market value, nor did the
seller suffer any money losses. [Burkett v. Griffith (1891) 90 C

However, it is possible for an
individual’s publication to cause an owner to lose money, even if a sale is
not involved.

For example,
the money losses recoverable by an owner or tenant for slander of title include:

  • money losses which
    are a direct result of the publication, including any market value decrease in
    the real estate caused by the slanderous statement [Rest.2d Torts
    §633(1)(a)]; and

  • expenses incurred
    by the owner to remove the doubt caused by the slanderous publication, including
    the costs of litigation. [Rest.2d Torts §633(1)(b)]

Punitive damages

If an owner can show the
slanderous publication was made with actual malice, punitive damages can
be recovered from the individual slandering title. [CC §3294]

For example,
an owner, to improve his residence, must remove an existing privacy fence and
relocate it on the boundary line six feet into what the neighbor uses as part of
his backyard.

The fence was constructed by the
prior owner. Both the owner and the neighbor know the fence is for privacy and
was not built to establish an agreed-to boundary.

Further, an existing utility pole
must be relocated to the boundary line – the location of an easement held
by the utility company. The owner takes out his building permits to construct
the fence and structural improvements. The utility company is advised to move
the pole.

The owner notifies
the neighbor of his construction plans and his intent to relocate:

  • the privacy fence
    to the boundary line; and

  • the utility pole
    to the center of the utility easement.

The neighbor does
not want the fence or the utility pole moved and intends to prevent the
construction by asserting a boundary line dispute.

The neighbor notifies the owner
and the utility company in writing that he considers the privacy fence the
property’s agreed-to boundary line – a statement the neighbor knows is

The utility company refuses to
proceed with the relocation of the utility pole until the dispute with the
neighbor over the boundary line is resolved.

The neighbor’s
actions delay the construction and increase the owner’s construction costs to
improve his residence.

The owner sues the
neighbor to establish the fence as a privacy fence and not a boundary fence. The
owner also demands his increased construction costs from the neighbor, claiming
the neighbor slandered title to his real estate delaying the construction
of the improvements.

Has the neighbor
slandered the owner’s real estate title?

Yes! The neighbor
made statements about the owner’s real estate which he knew to be false, causing
the owner to lose money and incur expenses.

The neighbor knows
the privacy fence is not the agreed-to boundary and yet tried to enforce it as
the boundary line by interfering with the construction. Thus, the neighbor is
liable for:

  • the owner’s
    increased construction costs; and

  • punitive damages for
    slandering the owner’s title. [Appel v. Burman (1984) 159 CA3d

Editor’s note
— If instead of making the comments to the owner and the utility company,
the neighbor filed an action to dispute the boundary line, the neighbor would
still have slandered the title. Any lawsuit the neighbor initiated would not be
absolutely privileged since it would not be a lawsuit brought in good faith to
protect his interest in another’s property.