Real Estate Litigation: When Can I Record A Lis Pendens?

As a real estate litigation attorney, I often receive calls in which potential clients want me to record a lis pendens in order to force someone else to pay money or settle a dispute.  There are many misunderstandings about when a lis pendens (or Notice of Pending Action) is appropriate.  Here are a few things to remember:

1.  A lis pendens can only be filed and recorded in conjunction with a lawsuit.  In fact the latin name lis pendens means exactly what its english counterpart means–a notice of a pending lawsuit.

2.  Breach of contract, fraud, quiet title, partition, resulting trust and other real estate related causes of action often support (or require) a lis pendens, but not all disputes in which a property is involved are appropriate for a lis pendens.  The dispute has to be about title to or possession of the real property.  If the outcome of the lawsuit involves a change (or affirmation) of ownership, a lis pendens may be appropriate.  If the outcome involves monetary damages, a lis pendens may not be appropriate.

3.  Expungement is the process of removing a lis pendens.  An experienced real estate litigation attorney can bring a motion to expunge lis pendens with the trial court in an effort to remove the lis pendens from the property.  Expungement is appropriate when the lawsuit does not plead a real property claim or when claimant has not established by a preponderance of the evidence the probable validity of the real property claim.

4.  An undertaking (bond) may also take the place of the lis pendens if a court so rules.

5.  Once a lis pendens has been expunged, a party may not record another one on the same property without leave of the court.

6.  Even if the court orders a lis pendens expunged, the order does not become effective (and the lis pendens remains on the property) until after the time in which to bring a writ of mandate has passed.

7.  The party who prevails on a motion to expunge lis pendens may be awarded attorneys’ fees “unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.”  Unfortunately this standard is so amorphous that the outcome will depend on each particular judge.

A lis pendens can be a very powerful tool in real estate litigation, even when it is improperly recorded.  The lis pendens can prevent a party from completing a sale or refinancing a property.  Even though a party may seek to expunge the lis pendens, this can take months from start to finish and cost a significant amount of money.  Misuse of the lis pendens is therefore very common.

An experienced real estate litigation attorney can determine whether a lis pendens is appropriate and how to get it expunged if necessary.

Laine T. Wagenseller is a real estate litigation attorney in downtown Los Angeles.  He is the founder of Wagenseller Law Firm and has handled many real estate lawsuits involving lis pendens.  He can be contacted at (213) 386-0371 or ltw@wagensellerlaw.com