Why you might consider a lis pendens during litigation

Lis pendens is Latin for “suit pending.” A lis pendens is a notice in the recorder’s office that is placed on the title of a house or piece of land. Recording a lis pendens gives potential buyers constructive notice that litigation involving the real property is underway. Until litigation is concluded or the lis pendens is removed, title to the property is “clouded.” As courts have noted, a lis pendens has the potential “to pour sand into the smooth gears of a real estate transaction.”

A lis pendens can substantially benefit the person who is suing. This is because it usually serves as a claim against the property for any damages that might be awarded in the lawsuit. Most buyers will not purchase property involved in litigation or will only purchase the property at a discount. A lis pendens does not prevent or necessarily invalidate the transfer of the property, although it makes such a transfer subject to the outcome of the litigation.

The party against whom the lis pendens has been recorded may file a motion and request that a judge expunge the lis pendens. The person who recorded the lis pendens can be subject to attorneys fees and costs if the court finds that the party acted without substantial justification. The decision of the superior court cannot be appealed. Instead, the losing party must file a writ of petition in the court of appeal. While an appellate court must consider an appeal, it has discretion to summarily deny a writ petition.

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