Legal Question in Real Estate Law in California

Re: How do I & Should I - file a lis pendis?

While I would have to see all docs before counseling you, you would need to file action for specific performance under your contract if all duck are in a row (if all is in order) and then file lis pendens on properties. Call to discuss.

Re: How do I & Should I - file a lis pendis?

The answer is yes, based on the facts you have provided, you should probably record a Notice of Lis Pendens with your county recorder's office as quickly as possible.

The answer to your other question is that I recommend speaking with an attorney who does real estate litigation immediately. The attorney can help you draft the Notice of Lis Pendens. The Notice must contain language saying that there is a pending lawsuit concerning the property. Therefore, you will need an attorney to help you prepare and file that lawsuit, which will probably include a cause of action for specific performance (i.e., compelling the seller to perform the contract).

As a preliminary step (before filing a lawsuit and recording a Notice of Lis Pendens), it is possible that a well-written letter from your attorney to the seller may convince the seller that it will be easier and cheaper in the long run to go through with the contract as written.

Please feel free to contact me with any other questions. I would also be happy to refer you to a real estate attorney in your geographic area. And in the meantime, make sure that you continue to do everything you are required to do under the contract, so the seller cannot claim that he has a reason to back out.

Re: How do I & Should I - file a lis pendis?

A lis pendens is the proper tool. However, before you can record a lis pendens, you must first file a lawsuit. It appears your case is pretty straightforward. Filing fees for the lawsuit and lis pendens would probably be $400. It would take 1-2 hours of attorney time to prepare the documents. Your contract also likely provides for the recovery of attorney's fees in the event litigation ensues. Give us a call. We can work out something simple and reasonable. We have several cases like yours and practice real estate law on a daily basis.

Re: How do I & Should I - file a lis pendis?

"Lis Pendens" is the old "legal Latin" term; it's now officially known in California as a "Notice of Pendency of Action" (see Code of Civil Procedure sections 405 and following) but everyone still uses "lis pendens."

The purpose of a lis pendens is, as you suggest, to notify everyone that a lawsuit that may affect title to, or possession of, real property has been filed.

CCP section 405.21 requires that a plaintiff not represented by an attorney must obtain prior permission from a judge before filing and recording a lis pendens. This requirement is imposed to prevent their improper use, e.g. to disrupt a deal or out of spite or malice.

If there is a plaintiff's attorney "of record" in the pending litigation, the attoney may sign, file and record the lis pendens without a judge's prior OK, but the attorney faces discipline if the lis pendens is improper.

There may be a question here as to whether you have sufficient grounds to file a pre-emptive lawsuit. If the seller is now actually in breach of the purchase contract, as it seems, you probably have a legitimate claim to take to court.

The possible cost of any real-property litigation goes well beyound the preparation and filing of a complaint and lis pendens, of course. There's a summons to serve, then the other side may mount a strong defense, including despositions and other discovery. Before you decide to file suit, consider whether the seller has any real defenses. If not, you'll probably get a quick settlement and your deal will go through.

A final thought is whether your purchase contract has an arbitration clause. If so, that may impact your right to file and maintain a lawsuit. I do not know whether this would also make filing a lis pendens improper; that's an issue I would have to research.

Re: How do I & Should I - file a lis pendis?

In order to file a "Lis Pendens" (a.k.a. Notice of Pending Action) to cloud the title you must file a lawsuit. You are specifically filing a lawsuit for specific performance to force the seller to complete the transaction. I have experience with this type of action and my hourly rates on much cheaper that most real estate attorneys. It is not the type of thing you should try to handle on your own. Feel free to call me for a free consultation.

Re: How do I & Should I - file a lis pendis?

You need to file suit for specific performance prior to the lis pendance. Call me directly at (619) 222-3504.