Property Disputes: Basic Use and Dangers of a Lis Pendens Filing

small claims property damages

Photos often are good evidence to prove damages in a real property dispute.

Many potential plaintiffs who have disputes with a landlord or property owner have questions about how to use a “Lis Pendens” filing to help their court case. Can it force an early settlement? Are there dangers to recording such a notice?

In this survey article, we present the basics of what a “Lis Pendens” filing is, and we point out the dangers of such a filing when it is not done in accordance with the law.

The Basic Purpose of a Lis Pendens Recording Is to Give Notice of Litigation.

Any party to a lawsuit that asserts a “Real Property Claim” in an action governed by California law may record a Lis Pendens with the county where the property sits. (See California Real Property Journal, “The Lis Pendens: Strategies and Pitfalls”. Cart & Lanphear, p.28-30). They are most often used by Plaintiffs suing for ownership or possession of a piece of real property.

A “Lis Pendens” recording is basically just a notice to the public that there is a court case involving a piece of property. They are generally used in civil courts to put the public on notice that the right to possession or ownership of a property is subject to a pending court case.

Once the Lis Pendens notice is properly recorded with a county, the public will be bound by the court action listed in the recording. Because of this fact, a Lis Pendens can be used as a weapon to prevent the marketability of a property.  California Code of Civil Procedure sections 405.20 – 405.24 control the procedure for recording of a Lis Pendens. Those sections include information on the form and contents required for a Lis Pendens.

There is a Requirement That Plaintiff Be Able to Establish Probable Validity of the Claim in Court.

There is a requirement that the Plaintiff recording a Lis Pendens notice be able to establish by a preponderance of the evidence the “probable validity of the real property claim” upon challenge by defendant. (Cal. Civ. Pro. section 405.32.)

Bases for Expungement of Lis Pendents on Motion by Defendant.

While it is relatively easy to record a basic Lis Pendens, the law also provide several bases for a defendant to attack the recording. California Code of Civil Procedure section 405.30 governs the procedure for a Motion to Expunge a Lis Pendens recording.

A defendant can make a motion to “expunge” a Lis Pendens on several grounds. They include: a failure to state a real property claim that qualifies (Cal. Civ. Pro. section 405.31), a lack of probably validity to the claim overall (Cal. Civ. Pro. section 405.32), and an argument that a plaintiff should be required to post an “undertaking”, or money deposit, to protect the property owner from damages that may be caused by the Lis Pendens.

Court Shall Award Attorney’s Fees Upon Granting Expungement of Lis Pendens.

Further, the law states that when a defendant successfully defeats a Lis Pendens by making one of these arguments in a motion to expunge, the court “SHALL” award attorney’s fees to the prevailing party upon request.

This means that a plaintiff who files a Lis Pendens, but who is later found to not have met the procedural or proof requirements, will have to pay the other side’s legal fees. Ouch!

Courts are aware of the potential for abuse of the Lis Pendens procedure, and the possibility it can be used to wrongfully prevent a property owner from selling a property while a weak or meritless claim is pending in court.

“We cannot ignore as judges what we know as lawyers – that the recording of a lis pendens is sometimes made not to prevent conveyance of property that is the subject of the lawsuit, but to coerce an opponent to settle regardless of the merits.” (Hilberg v. Superior Court 215 Cal. App. 3d 539, 542.)

Realistically, this danger makes a Lis Pendens recording outside the range of a litigant who represents themselves without an attorney.

Get an Attorney’s Advice Before Recording a Lis Pendens Notice.

Plaintiffs or potential plaintiffs who are involved in a property dispute and who want to consider whether or not a Lis Pendens is appropriate for their case should consult with a licensed and qualified real property attorney for professional advice on the subject. A $200 appointment with an attorney might save you from a $5,000 mistake.

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More info: California Code of Civil Procedure sections 405.20-405.32;  California Real Property Journal, “The Lis Pendens: Strategies and Pitfalls”, Cart & Lanphear. Vol. 33, No. 4, 2015, p.28-30.

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