What is a Lis Pendens (Notice of Pendency of Action) Under California Law?
Formerly known as a “lis pendens,” a notice of pendency of action is a written document, recorded with the county recorder, that provides constructive notice of a pending court action (i.e. a lawsuit) that affects title to, or possession of, real property. In essence, a lis pendens is a notice of pending litigation against a piece of real property, such as a partition action. “‘Notice of pendency of action’ or ‘notice’ means a notice of the pendency of an action in which a real property claim is alleged.” Cal. Code Civ. Proc. § 405.2. A more in depth description of the subtleties of a lis pendens can be found on What is a Lis Pendens in California?
How Do I File a Lis Pendens?
Below is a list of the procedural and formal requirements for drafting, filing, and serving a lis pendens. Keep in mind that an improperly executed and served lis pendens may not be recognized by title insurance companies as creating a cloud in title and may be subject to expungement of a lis pendens. It is highly recommended that you contact a skilled real estate litigation attorney prior to using this guide.
Prerequisites to Filing a Lis Pendens
- The action must be pending. In order to record a lis pendens, an action must first be pending in the proper court. The notice can only be recorded by a party to an action in which a real property claim is alleged. Code Civ. Proc., § 405.20. It must be signed by the attorney of record in the action, or by a party appearing in pro per if approved by the judge in the action. Cal. Code Civ. Proc., § 405.21. Neither requirement can be satisfied if no action is pending. A purported lis pendens recorded before an action is filed in the proper court is of no effect and can be expunged. If the claim on which the lis pendens is based is dismissed, a previously recorded lis pendens is ineffective since there is no longer a pending action asserting a real property claim. The “action” to support a lis pendens may take the form of a cross-complaint as well as an original complaint on the action. See Cal. Code Civ. Proc., § 405.1 (defining “claimant” as a party to an action who asserts a real property claim), and Cal. Code Civ. Proc. § 405.20 (“A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged”).
- The action must involve a real property claim. A lis pendens must pertain to an action in which a “real property claim” is alleged. A lis pendens may not be filed, and if filed may be expunged, where the action pleaded does not include a “real property claim.” A “real property claim” means a cause of action in a pleading which would, if meritorious, affect title to or possession of specific real property, or the use of an easement identified in the pleading. If no such claim appears in the pleadings, a lis pendens is improper, and may be expunged, and no undertaking may be required as a condition of the expungement. There is no requirement that the specific nature of the action appear in the recorded lis pendens, however. Id.
Drafting the Lis Pendens
- The content of the lis pendens. The recorded lis pendens must contain the names of the parties to the action and must contain a description of the property affected by the action. Cal. Code Civ. Proc. § 405.20.
- The form of the lis pendens. The statute does not specify the form of lis pendens, but due to the requirement that it be filed with the court immediately after recordation, the usual practice is to use the style and captions of pleadings filed in the action. Cal. Code Civ. Proc., § 405.20. Talkov Law has provided a lis pendens form for you to use in consultation with an experienced litigator.
- Signature of attorney of record or approval by the court for unrepresented parties (pro per). An attorney of record in an action may sign a notice of pendency of action. Alternatively, a judge of the court in which an action that includes a real property claim is pending may, upon request of a party thereto, approve a notice of pendency of action. A notice of pendency of action shall not be recorded unless (a) it has been signed by the attorney of record, (b) it is signed by a party acting in propria persona and approved by a judge as provided in this section or (c) the action is subject to Section 405.6. Cal. Code Civ. Proc. § 405.21.
- Property included in the description. The legal description must include all of the property affected by the action. Cal. Code Civ. Proc. § 405.20.
Service of the Lis Pendens
- Service of copies and proof of service. Prior to recording, a copy of the notice must be mailed by registered or certified mail, return receipt requested, to all known addresses of all parties against whom the claim is adverse and to the record owners of the property affected by the claim at the addresses shown in the county assessor’s records. Id. Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll. If there is no known address for service on an adverse party or owner, then as to that party or owner a declaration under penalty of perjury to that effect be recorded instead of the proof of service required above, and the service on that party or owner shall not be required. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action. Cal. Code Civ. Proc. § 405.22.
- Purpose of Service. The purpose of requiring service of the lis pendens on the owner is to give prompt notice of its recordation and of the fact a claim is pending. If the plaintiff complies substantially with the service requirements, and the owner actually receives the notice, the notice may be effective even though there may be some technical defect in the service. Under the current statute, the lis pendens is “void and invalid” as to any adverse party if it has not been served properly as to that party or if a proof of service or declaration is not recorded with the lis pendens. Cal. Code Civ. Proc., § 405.23. For example, a lis pendens that was not mailed to the address of the owner of record as shown on the assessor’s roll was void as to that party and its grantees who were not made parties to a quiet title action, even though the grantees had actual knowledge of the litigation. Carr v. Rosien (2015) 238 Cal. App. 4th 845, 855–856.
Recording the Lis Pendens With the County Recorder
- Requirements for recording. A lis pendens cannot be recorded unless: (1) it is signed by the attorney of record for the claimant; or (2) the court in which the action is pending approves the lis pendens before it is recorded. The court’s approval should be either endorsed on or attached to the recorded lis pendens. The lis pendens may be recorded without an acknowledgment. The recorded lis pendens must be accompanied by a proof of service on each affected party that is recorded with the notice, or it is void as to that party. Cal. Code Civ. Proc. §§ 405.22, 405.23.
- Where the lis pendens may be recorded. In order to impart constructive notice, the lis pendens must be recorded in each county where the property or any part of the property is located. The recorder is required to maintain an index of recorded lis pendens. Id. A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated. The notice shall contain the names of all parties to the action and a description of the property affected by the action. Cal. Code Civ. Proc. 405.20
- When the lis pendens may be recorded. If the action is to foreclose a mechanics lien, the lis pendens must be recorded within twenty days after commencement of the action or it may not impart constructive notice. In other cases, the lis pendens may be filed in any action asserting a real property claim at any time during the proceedings until there has been a final determination on appeal; therefore, it may be recorded by the claimant for the first time after a judgment is rendered and while the action is pending on appeal until the final resolution of the appeal. A losing defendant, however, ordinarily cannot file a lis pendens to protect his or her position on appeal, because only the claimant of the real property claim can file the notice. Also, if a lis pendens has been expunged, it may not be re-filed without approval of the court. Cal. Code Civ. Proc., § 405.36.
- Constructive notice. From the time of recording the notice of pendency of action, a purchaser, encumbrancer, or other transferee of the real property described in the notice shall be deemed to have constructive notice of the pendency of the noticed action as it relates to the real property and only of its pendency against parties not fictitiously named. The rights and interest of the claimant in the property, as ultimately determined in the pending noticed action, shall relate back to the date of the recording of the notice. Cal. Code Civ. Proc. § 405.24.
Filing the Lis Pendens With the Court
- Filing with the court. 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.
Lis Pendens Reminder Checklist:
- Sign the proof of service
- Serve by certified mail
- Include both the proof of service and the notarized acknowledgement in the filing and recording
- Include all documents in the correct order, starting with the lis pendens form followed by the notarized acknowledgement, then the proof of service showing certified mail
Note: While not statutorily required, having the acknowledgement notarized is a recommended precaution to help prevent issues leading to a lis pendens expungement
Can I Remove a Lis Pendens?
A lis pendens can be removed one of two ways: either the litigation involving the property can be resolved or the lis pendens can be expunged. Expungement of a lis pendens is a remedy that is available to curb abusive lis pendens recordings. See Elder v. Carlisle Ins. Co. (1987) 193 Cal.App.3d 1313, 1317-18; Trapasso v. Superior Court (1977) 73 Cal.App.3d 561, 569; Stewart Development Co. v. Superior Court (1980) 108 Cal.App.3d 266, 273.
There are five grounds for lis pendens expungement: 1) the underlying action does not involve a real property claim; 2) “void or invalid” lis pendens recording; 3) claimant has not shown probable validity of underlying claim; 4) monetary judgment is adequate to satisfy the real property claim; or 5) claimant fails to file an undertaking. Our lis pendens expungment guide explains these grounds for lis pendens expungement in detail.
Contact a California Real Estate Attorney with Lis Pendens Experience in Los Angeles, Orange County, San Francisco, Riverside, San Diego, San Jose, Sacramento, Fresno, and Surrounding Areas in California
The steps involved in drafting, filing, serving and executing a notice of pendency of action, or a lis pendens, are complex and specific. If one step is done incorrectly, the lis pendens may be expunged. We highly recommend you consult with a quiet title attorney experienced in real estate litigation who can assist you in your case. Contact the attorneys at Talkov Law online or at (844) 4-TALKOV (825568) for your free, 15 minute consultation.