This guide discusses what a Lis Pendens is, what a Lis Pendens does and doesn't do, and how to put a Lis Pendens on real estate in California.
A LIS PENDENS IS NOT A LAWSUIT
A Lis Pendens is not a lawsuit*it is a document that notifies the world that there is an ongoing lawsuit. The literal translation of Lis Pendens is *suit pending.* It is also sometimes referred to as a *Notice of Pendency of Action.* As the name suggests, the purpose is to let others know that there is an active lawsuit.
A Lis Pendens is filed with the County Recorder in the county where the piece of property that the law suit involves is located. When any document is recorded with the County Recorder, it puts the world on notice of its contents. When a Lis Pendens is filed, the world is now on notice that there is a lawsuit going on regarding the piece of property that the Lis Pendens is filed against.
A Lis Pendens is also filed in the court where the action it refers to is pending. There must be an active lawsuit in order to file a Lis Pendens*meaning, you cannot file a Lis Pendens on its own. Further, as discussed below, a Lis Pendens can only be filed based on certain types of lawsuits, and there are repercussions if you file one improperly.
A LIS PENDENS DOES NOT PREVENT THE OWNER FROM SELLING THE PROPERTY
Nor does it prevent the owner from obtaining additional loans, refinancing, or a loan modification. However, usually the effect of filing a Lis Pendens does all the above, at least for some time. This is because, once it is filed, there is a *cloud on title.* In other words, the world is on notice that someone claims that there is ongoing legal action regarding the ownership rights of the property.
Because the effect of filing puts the world on notice of the cloud on title, those that take actions regarding the property, such as buying it, face the consequence of the pending legal action changing their rights regarding the property (even though that third party didn*t necessarily do anything wrong). For this reason, property is not typically sold when there is a Lis Pendens on file. Similarly, loans cannot usually be obtained by the owner when there is an active Lis Pendens.
A LIS PENDENS SHOULD NOT BE FILED ON A WHIM-THERE ARE SERIOUS CONSEQUENCES TO FILING ONE IMPROPERLY
Some lawsuits require that a Lis Pendens in filed. Others allow for one to be filed. However, in all other cases, it is improper to file a Lis Pendens. If a Lis Pendens is filed based on a lawsuit that does not allow for one, the party filing it may be subject to liability, including money damages in the form of attorney*s fees and costs that the other party incurs in removing (*expunging*) the improperly-filed Lis Pendens.
STRICT REQUIREMENTS FOR FILING & SERVING
There are also strict requirements for filing and serving a Lis Pendens. Failure to follow these rules may result in the owner bringing a Motion to Expunge and may entitle them to their attorney*s fees and costs for having to do so. One critical component of service is that it is required on all parties that may be affected by the Lis Pendens, and they must be served properly.
For all the above reasons, it is critical that anyone seeking to file a Lis Pendens first consult with an experienced real estate attorney.
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