Lis Pendens under California law is a Notice of Pendency Action that is filed with the county recorder when there is a lawsuit affecting the title of real property. While not all litigation involving real property claims require lis pendens to be filed, it is accepted as long as there is a pending lawsuit that meets certain requirements. While a lis pendens does not directly affect title to the property, it could affect the disposition of the property later.
Knowing what a lis pendens is, how it is filed, when it is used, and how it is expunged are important for knowing your property claim rights.
Should I Be Worried About a Lis Pendens on My California Property?
Lis pendens is a formal notice that there is a pending action, or lawsuit, that could affect the title of the property. However, it serves an even bigger purpose. When a lis pendens is filed, any future transfers of the property are affected by the pending action if it were to be awarded. A lis pendens puts a “cloud” on the title. It doesn’t prevent you from selling your home, but it does make the title uncertain, which could affect your ability to sell.
For example, if a property is under lis pendens and the owner sells, but the claimant in the action wins their case, the sale becomes null and void and the new “owners” must surrender their claim to that of the entity named in the California lis pendens.
It is concerning when there is a lis pendens on your property, particularly because it is only dismissed when the action has reached its conclusion or by expungement from a circuit court judge. That means even if the lawsuit goes nowhere, there is a possible incumbrance to doing anything with the real property since future claimants could be denied later down the road.
What You Should Do About a Lis Pendens on Your Property
If you have a lis pendens on your property, you need to contact an attorney as soon as possible. A Motion to Expunge should be filed as soon as possible. If you aren’t sure about the details of the action filed, you can request information from the court clerk. It is necessary for claimants to serve notice of the pending action, and it cannot move forward until you have been served. However, the lis pendens doesn’t go away by refusing service, so it is beneficial to tackle the legal issue directly.
Removing a Lis Pendens in California
Other than resolution of the pending lawsuit, the only way to remove a lis pendens is by expungement, which requires a court order from a circuit judge. If you refuse service or the action is otherwise delayed, the lis pendens remains intact, making it difficult to sell or otherwise transfer a property. In general, a circuit court judge will not order expungement of a lis pendens unless it no longer applies to the case, or the case should be dismissed.
In most cases, you will need to petition for dismissal of a lis pendens unless the pending action is resolved, whatever the outcome. If you can show that the claimant does not have a real property claim that is reasonably valid, you could easily have the lis pendens, and the case, dismissed. You should also recover related attorney’s fees and court costs. Improper service is another common reason for lis pendens expungement.
It is best to work with an attorney that knows the ins and outs of lis pendens and how to keep them from affecting your own real property claims.
When to File a Lis Pendens
A lis pendens must meet certain criteria. First, you can only file a lis pendens if you have a pending lawsuit with the circuit court. Your case must be already pending before the lis pendens will be recorded by the county. In addition, this case must be pending in the correct court jurisdiction and show a real property claim.
There are several instances in which you might need to file a lis pendens. Common lawsuits that may require or result in lis pendens being recorded include quiet title actions, partition lawsuits, specific performance, and easement disputes. A quiet title action is when more than one person has a claim to real property, and the title needs to be “quieted” or made to be a clear title.
A partition lawsuit is one of the most common. This is a filing that seeks to force the division of real property among owners, or to dispose of real property with the sale proceeds being equally divided among all owners. It is common when real property is inherited with more than one beneficiary listed, or when a couple owns a property jointly and are separating. Specific performance actions are usually placed by a buyer or seller when either or doesn’t fulfill the purchase contract. There are various types of easements in California, and some of them can result in a lis pendens if there is a dispute.
A lis pendens must be filed with both the county recorder and the circuit court clerk. After the action has reached pending status, the lis pendens must be drafted and submitted to the county recorder to be recorded for public record. This does not end this part of the process. Once the lis pendens has been recorded, evidence of such with the lis pendens must be filed with the circuit court hearing the lawsuit.
It is also important to note that you must serve any potentially interested parties to the action by having them served with the lis pendens. Although other actions and filing have different requirements, the lis pendens can be served via certified mail in most cases. The lis pendens cannot be recorded until all interested parties have been notified. This includes anyone listed on the title, anyone listed as beneficiary, or any entity with a financial interest in the property, such as mortgage lenders.
Prerequisites to Filing a Lis Pendens
- Pending Legal Action: A lawsuit involving a property claim, such as ownership or title, must be filed or about to be filed.
- Direct Connection to Property: The legal action must directly affect the property’s title, ownership, or rights, not just financial disputes.
- Court Jurisdiction: The lawsuit must be filed in a court that has authority over the property’s location.
- Valid Legal Grounds: The claim must be legitimate and legally supportable to avoid penalties for wrongful filing.
- Accurate Property Information: The Lis Pendens must include the precise legal description of the property as found in the deed.
- Compliance with Local and State Laws: Follow all local procedures, including proper forms, fees, and possible notarization.
- Title Search or Review: Conduct a title search to avoid conflicts with prior claims or Lis Pendens on the property.
- Proper Notice to All Parties: Ensure all relevant parties, such as owners and lienholders, are formally notified of the filing.
- Legal Counsel: Consult an attorney to verify the legal grounds and ensure proper compliance with local rules.
How to Put a Lis Pendens on a California Property
Putting a lis pendens on a California property is a straightforward process, but not one that you should tackle on your own. An experienced real estate attorney should be hired to draft, serve, and file your lis pendens with the county recorder. Here is how our attorneys will put a lis pendens on a California property.
- Draft the lis pendens. There is a specific format and particular language that must be included for a proper lis pendens filing. It must state the reason for the lis pendens, identify the related pending action (lawsuit), and all parties that may have an interest in the outcome of the lis pendens. This includes all owners and lenders, as well as beneficiaries and other interested parties. An experienced real estate attorney can do the homework to handle this task quickly and correctly.
- Serve the lis pendens to all interested parties. This is extremely important. If you miss anyone that might have an interest in the outcome of the lawsuit, it could result in an improper lis pendens filing. Service must be handled in a specific way depending on several factors. Our service partners follow all the requirements to avoid improper filing.
- Record the lis pendens with the County Recorder. The County Recorder will verify the information in your lis pendens document. If everything is found to be accurate, and all interested parties have been served, the county recorder will make it public record.
- File the lis pendens with the circuit court. The county recorder makes the notice of action public record, but it does not fulfill the filing requirements for the circuit court hearing the case itself. After being recorded, the lis pendens needs to be filed with the circuit court clerk.
The consequences for misfiling a lis pendens can be devastating. An improper lis pendens gives grounds for title holders to dispute and file a Motion for Expungement. This motion could also lead to the judge dismissing your lawsuit. In addition to potentially losing your claim to any property settlement, an improper lis pendens can lead to financial losses through orders to pay court costs and legal fees for the owner winning dismissal of a lis pendens.
It is easy to see why a proper lis pendens filing is important, regardless of which side you are on. Whether you need to fight an improper lis pendens or need to file one to protect your real property claim, our experienced Los Angeles real estate attorneys are ready to stand by your rights. Contact us to schedule a consultation to learn if we can help you with your case.
