Gimme 5: What Every Lawyer Should Know about Obtaining and Expunging a Lis Pendens
By Alicia N. Vaz, an associate at the Los Angeles office of Cox, Castle & Nicholson LLP. Vaz is a commercial litigator with substantial experience handling complex business and real estate litigation. She can be reached at AVaz@coxcastle.com.
1. What is a lis pendens?
In any case in which a real property claim is alleged, a “notice of pendency of action,” or a lis pendens, may be recorded with the county recorder in each county where the affected property is located. The purpose of a lis pendens is to provide constructive notice to a subsequent purchaser, claimant, or encumbrancer that a legal action is pending that may affect title to or possession of the affected property. These subsequent interests take the property subject to any judgment that is entered in the lawsuit in favor of the claimant, and the claimant’s rights relate back to the date of recordation. Prior recorded interests are not affected.
A real property claim is one where the cause(s) of action in the complaint would, if meritorious, affect (i) title to or the right to possession of specific real property or (ii) the use of an easement. Code Civ. Proc. §405.4. As a result, an action for damages, even for damages arising out of a purchase and sale agreement for real property, does not entitle the claimant to record a lis pendens.
2. When can a lis pendens be recorded?
A claimant may record a lis pendens immediately after filing a complaint alleging a real property claim. The following steps will help ensure that the lis pendens is validly recorded:
a. File a complaint and obtain a case number. Prepare a lis pendens on pleading paper, including the case number in the caption.
b. Serve the lis pendens by registered or certified mail, return receipt requested, on all known addresses of the adverse parties to the real estate claims and all owners of record as shown by the latest county assessment roll. If the address of any adverse party to the action or owner is unknown, a declaration must be filed.
c. Record a properly prepared lis pendens, with a proof of service, in the office of the recorder of each county in which all or part of the real property affected by the action is situated. Duplicate originals should be used if there are multiple counties.
d. A copy of each recorded notice should then be filed in the court in which the action is pending.
3. What must be included in a lis pendens for it to be procedurally valid?
To be procedurally valid, a lis pendens must include in the body of the notice (i) the names of all the parties named in the action, (ii) a description (both legal and common) of the real property affected by the action, and (iii) the signature of an attorney of record in the action. In addition, a fourth element of a lis pendens, not specifically identified in the Code of Civil Procedure, is the identity of the action. See Civ. Code §47(b)(4). Although it used to be a requirement, a detailed statement of the causes of action in the lawsuit is no longer required. Instead, once a lis pendens is recorded, it will provide constructive notice of all facts in the action that could be discovered by a reasonable inquiry.
When a lis pendens is recorded, it must be accompanied by a proof of service. A lis pendens will be void and invalid as to any adverse party or owner of record of the property unless this requirement is met, and a proof of service has been recorded.
4. How can a lis pendens be expunged?
Where the pleading filed by the claimant does not properly plead a real property claim or the lis pendens is defective on its face for failing to comply with the filing and service requirements, the lis pendens must be expunged by the court upon motion. A motion to expunge a lis pendens may be made at any time after the lis pendens has been recorded by any party or nonparty with an interest in the real property affected. The claimant then has the burden to prove by a preponderance of the evidence that the real property claim has a probable validity of succeeding on the merits. A party moving to expunge a lis pendens may be entitled to recover its attorney’s fees and costs relating to the motion if an expungement order is issued. See Code Civ. Proc. §405.38.
If the court determines that the real property claim has probable validity but that adequate relief can be secured by an undertaking, the court may order that the expungement be conditioned by the giving of an undertaking in an amount that will indemnify the claimant for all damages proximately resulting from the expungement if the claimant prevails upon the real property claim.
5. How and when does a lis pendens terminate?
A lis pendens is only effective as long as the action is pending and ceases to give constructive notice once the case is dismissed, or a judgment becomes final, after an appeal or after the time for an appeal has expired. Alternatively, a lis pendens may be withdrawn by the party who recorded the lis pendens by recording a notice of withdrawal of notice of pendency of action. The notice of withdrawal must be notarized.
Once a lis pendens is expunged or terminates, leave of court is required before the claimant may record another notice as to the affected property.