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The Use and Abuse of The Lis Pendens Process

In real estate law, the recording of a lis pendens following the initiation of a lawsuit is one of the most powerful weapons at a plaintiff’s disposal. A lis pendens is a document filed with the County Recorder in the county where a specific piece of real estate is located, giving notice to the world at large – including prospective buyers – that the property is the subject of ongoing litigation. The lis pendens, thus, puts a cloud on title, making the property effectively unmarketable until litigation is resolved.


The financial pressure created by the recorded lis pendens provides the opportunity for abuse, permitting parties with meritless cases to use it as a bullying tactic to extract unfair settlements. Imagine the excitement of getting a job in the company of your dreams and purchasing your first home. Imagine the excitement of then moving into that home with your romantic partner. But a few years later, you find yourself in the following situation: your romantic partner is not who he seemed, and your relationship ends. The economy is not great, and you are a victim of mass layoffs. And if that weren’t enough, your ex initiates a civil action against you asserting all kinds of baseless claims. He then files a lis pendens with the County Recorder, claiming he has an interest in your home. Your home, your sanctuary, is now your prison. What do you do?


California legislators recognized that unless applied narrowly, lis pendens laws could have an improper coercive effect on litigation. They, thus, provided a remedy for the misuse of the lis pendens process in the form of a motion to expunge. A court will expunge the lis pendens if the court finds either that (a) plaintiff’s complaint does not contain a real property claim (i.e., one affecting title or possession of the property or the use of an easement), or (b) plaintiff cannot establish the probable validity of his real property claim. Thus, the burden of proof is on the plaintiff, and in our hypothetical above, the disgruntled former romantic partner, to establish the existence of a real property claim and that it is probably valid. Cal. Civ. Proc. Code § 405.32. Indeed, if he fails to meet his burden, the court “shall” award the prevailing party her attorney’s fees and costs incurred in seeking expungement.


Thus, though lis pendens laws provide a powerful legal weapon in protecting valid real property claims, knowing when to record a lis pendens, and how to deal with an improperly recorded one is critical.


At Pasic Law we have successfully recorded proper, and expunged improper, lis pendens. If you have questions about a lis pendens affecting your property, or if you believe you may be entitled to record a lis pendens against a property owned by another, contact Leyla Pasic at lpasic@pasiclaw.com.

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