Written By: Joseph J. Nardulli
Often questions are posed to us regarding what a Lis Pendens recorded against real property is and what its effects are on the owner of the real property. “Lis Pendens” is merely a Latin expression which means that an action is pending in Court concerning an ownership or possessory interest in the property in question. That is, anyone who would acquire an interest in that real property, a purchaser or a lender, would take that interest subject to any judgment that may be entered in the lawsuit described in the Lis Pendens. The obvious practical effect is to cloud the property’s title and prevent its transfer until the litigation is resolved or the Lis Pendens is expunged or released, as will be described later in this article. Practically speaking, placing a Lis Pendens against a person’s property clouds title to the property and prevents its transfer until the litigation is resolved or the Lis Pendens is removed by judicial action.
The judicial action to remove a Lis Pendens is generally a Motion to Expunge Lis Pendens. First, one must explore whether an ownership or possessory interest is in fact the subject of the lawsuit that has been filed with the Court. The types of lawsuits that clearly qualify for attachment of a Lis Pendens are cases that involve the disputed ownership of real property or some portion of real property. Lis Pendens are commonly attached where there is a dispute as to who the true owner of the property is, whether some party has some fractional interest in the property, or such issues that effect the description and characteristics of the property. For example, actions involving real property easements are typically the subject of a Lis Pendens, as are actions between a buyer and a seller as to the right to purchase real property.
In contrast, those bringing a lawsuit that has no connection to the ownership of the property cannot place a Lis Pendens on one’s real property. For example, if you are sued for Breach of an Employment Contract by an employee, that employee cannot utilize the mechanism of a Lis Pendens. Likewise any type of contract dispute that has nothing to do with a possessory or ownership interest of the real property in question cannot be the basis of a Lis Pendens upon a person’s property. To reiterate, a Lis Pendens is only applicable to a real property claim. C.C.P. § 405.1 Real property claims fall into two basic categories: 1) Title to or the right to possession of specific real property, or 2) the use of an easement identified in the Complaint.
What to do if a Lis Pendens is placed upon Your Property:
As stated previously, the first question to ask is whether the type of claim being made against the owner of the real property is one in which a Lis Pendens can properly be used. If you are on the receiving end of a Lis Pendens, there are various grounds for expunging or removing a Lis Pendens. A Lis Pendens may be ordered removed, or expunged, from the recorded title by virtue of a Motion brought in Court known as a Motion for Expungement of Lis Pendens. The following situations are reasons or grounds upon which a Lis Pendens may be removed:
- Improper Lis Pendens — The Lis Pendens is improper because the Complaint does not contain a real property claim. C.C.P. § 405.31
- The Plaintiff cannot establish its “probable validity by a preponderance of the evidence” C.C.P. § 405.32
- The other method of removing or expunging a Lis Pendens is by posting a bond sufficient enough to provide adequate security for damages that the person bringing the lawsuit, i.e., the Plaintiff, may suffer, even if it is a real property claim and it has probable validity. This is often utilized in a commercial setting where money is adequate compensation for the breach of a Contract to purchase real property since the property itself may not be unique (it is merely a part of a commercial transaction). This is in contrast to the situation where the Plaintiff bringing the action has bought a particular home which the Court would find is unique and may not allow a Lis Pendens to be removed by virtue of posting a bond.
It should be noted that when a party places a Lis Pendens upon another person’s real property they must give written notice to the party owning the real property that they have placed a Lis Pendens on the property. If said notice is not given, it provides another ground for expunging the Lis Pendens, although the party placing the Lis Pendens can go back to the drawing board and refile the Lis Pendens and properly serve the owner of the property, notifying the owner of the existence of the Lis Pendens. It is important to understand that if you receive notice that a Lis Pendens has been placed on your property, by Certified Mail or otherwise, that you should immediately bring it to the attention of your attorney so that your attorney can take appropriate action.