California Code of Civil Procedure 872.250 is the California partition statute that specifies the requirement of filing a lis pendens (notice of pending action) in a partition action, as well as the effect of a lis pendens in a partition action. The statute provides that:
(a) Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.
California Code of Civil Procedure 872.250
(b) If, thereafter, partition of other real property is sought in the same action, the plaintiff or other person seeking such relief shall immediately record a supplemental notice.
(c) If the notice is not recorded, the court, upon its own motion or upon the motion of any party at any time, shall order the plaintiff or person seeking partition of the property, or another party on behalf of the plaintiff or other person, to record the notice and shall stay the action until the notice is recorded. The expense of recordation shall be allowed to the party incurring it.
(d) From the time of filing the notice for record, all persons shall be deemed to have notice of the pendency of the action as to the property described in the notice.
The effect of this statute is that: “The filing of the lis pendens constituted constructive notice to all the world in the manner expressly provided by statute that an action had been commenced which directly affected the title to the property described in the notice.”[1]Turner v. Bank of Am. Nat. Tr. & Sav. Ass’n (1933) 135 Cal.App. 314, 319–20
“A party who has no lien when the action is begun but obtains one later need not be made a party, but it is that party’s right and duty to intervene and set up the lien and have it adjudicated in the decree.”[2]48 Cal. Jur. 3d Partition § 49 (citing Towle Bros. Co. v. Quinn (1903) 141 Cal. 382, 74 P. 1046).
“Accordingly, a mortgagee who takes the mortgage after commencement of a partition action is not made a party and does not intervene has no rights as against the purchaser at the partition sale although the final decree is appealed and modified, and the buyer knows of the mortgage at the time of the sale.”[3] 48 Cal. Jur. 3d Partition § 49 (citing Turner v. Bank of America Nat. Trust & Sav. Ass’n (1933) 135 Cal. App. 314.
Immediately after recording, a copy of the notice must be filed with the court in which the action is pending. Cal. Code Civ. Proc. § 405.22.
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References
| ↑1 | Turner v. Bank of Am. Nat. Tr. & Sav. Ass’n (1933) 135 Cal.App. 314, 319–20 |
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| ↑2 | 48 Cal. Jur. 3d Partition § 49 (citing Towle Bros. Co. v. Quinn (1903) 141 Cal. 382, 74 P. 1046). |
| ↑3 | 48 Cal. Jur. 3d Partition § 49 (citing Turner v. Bank of America Nat. Trust & Sav. Ass’n (1933) 135 Cal. App. 314. |
