Legal Question in Real Estate Law in California

Re: lis pendens

Follow Mr. Whipple's excellent advice, and do so at once!

Re: lis pendens

First, I should probably start out by saying that there are legal matters in which filing a lis pendens is pretty much required, and in those matters it should be filed as soon as possible after the complaint to which it pertains is filed. Then there are lawsuits in which a lis pendens is NEVER proper. I suppose you know all this, and that yours is a lawsuit that involves a question of title to or right to possession of real property. You mention a lease, and certainly a lease gives rise to at least a colorable right of possession, hence a lis pendens is likely to be permissible in your case involving the right of possession of real property under a lease.

A lis pendens (modernly sometimes referred to as a Notice of Pendency of Action) is a recorded and filed document that notifies the world that certain real property is affected by a lawsuit that has been filed but not yet decided by the court, and hence that all persons are notified that any rights they may think they have acquired in the property subsequent to the recording of the lis pendens are subject to the rights, if any, of the plaintiff in the lawsuit.

As a notice of possibly adverse claims, the lis pendens works like any other lien; it is effective against subsequent recorded documents such as deeds and liens, but is subordinate to prior-recorded liens, deeds, etc.

Therefore, "he who hesitates" to get his lis pendens recorded faces the possibility that someone else may sneak in a recorded document ahead of the lis pendens. Suppose, for example, that you sue X, who owns Blackacre, asserting that you have a 10-year lease of Blackacre that X is not observing. However, you tarry in recording your lis pendens. In the meanwhile, X, that sneaky SOB, sells Blackacre to Y and Y records his deed, having no prior notice, actual or constructive, of your lease. You are out of luck, pretty much, since Y's deed is sentior to any lis pendens you may later record.

For this reason, it is highly recommended to beat the defendant to the courthouse, and file ASAP. This is always assuming, of course, that the nature of your lawsuit allows you to record a lis pendens.