A lis pendens is a recorded document warning about a pending lawsuit. This lawsuit might change the property’s ownership1. Having a lis pendens can make selling property very hard. But, property owners can try to get it taken off by filing a “motion to expunge”1.
There are different reasons to file a motion to expunge. For example, it could be filed because there’s no real property claim. Or the person suing can’t show their claim is likely true. It can also be for protecting the suing person’s interest with some security1.
In California, the Code of Civil Procedure has the steps for removing a lis pendens. If the lawsuit doesn’t really involve the property, it can be expunged under Section 405.312. If the suing person can’t prove their case is probably true, it can also be removed under Section 405.321. Plus, if the suing person’s interest can be protected with some security, the lis pendens might have to be expunged1.
Understanding Lis Pendens
A lis pendens is a legal note recorded in the county’s records. It lets others know there is a lawsuit that could affect a property’s ownership3. The goal is to alert everyone that the property’s future might change because of the lawsuit3.
Definition and Purpose of Lis Pendens
Lis pendens means “suit pending” in Latin. It’s filed when a lawsuit ties up a property’s ownership4. This note clouds the title, meaning the property can’t easily be sold or used as collateral in a loan until the lawsuit is settled or the note is removed4.
Impact of Lis Pendens on Real Property Transactions
A lis pendens can really slow down or stop property deals3. Buyers and lenders might back off if there’s a lawsuit hanging over the property4. This could mean deals are delayed, become more complex, or fail altogether until the legal issue is sorted out3.
| Key Impacts of Lis Pendens | Explanation |
|---|---|
| Constructive Notice | A recorded lis pendens tells everyone that the property’s in a lawsuit4. |
| Lien on Property | It acts like a lien, tying up the property’s title until the case is over4. |
| Complicating Transactions | Dealing with a property under lis pendens can make transactions hard or impossible until the claim’s settled or the note’s removed3. |
“The existence of a lis pendens can significantly impact real property transactions, rendering the sale or encumbrance of the affected property difficult or even impossible until the litigation is resolved or the lis pendens is expunged.”3
Grounds for Expunging Lis Pendens
In California, a lis pendens can be removed through a process known as expungement5. A successful motion may lead to removing the lis pendens5. Yet, there are limits to this. A lis pendens may be expunged if there’s no claim on real property or the claim’s validity is not proven56.
Lack of Real Property Claim
A valid lis pendens must be about the ownership or right to the property6. If a claim is only about money and doesn’t affect property rights, it fails to back up a lis pendens6. The court will remove a lis pendens if a real property interest isn’t found5.
Failure to Establish Probable Validity of Claim
Besides a real property claim, the plaintiff must show their case is likely to succeed6. They need to prove their claim is more likely right than wrong5. If they can’t, the court will expunge the lis pendens5.
The removal of a lis pendens is very important for claimants. It clears the property’s title issues and allows for clear transactions5. Winning an expungement might also mean getting legal costs covered5.
“Lis pendens, once filed, remains valid until expunged or the underlying case is resolved.”5
Plaintiffs must carefully check they meet the legal needs to avoid expungement6. It’s wise to get help from probate lawyers in property ownership disputes5.
| Reason for Expungement | Explanation |
|---|---|
| Lack of Real Property Claim | The underlying legal action must affect the title or right to possession of real property. Claims seeking only monetary damages do not support a lis pendens. |
| Failure to Establish Probable Validity of Claim | The claimant must prove, by a preponderance of the evidence, that they are more likely than not to prevail on the merits of their case. |
Meeting strict standards is crucial to keep a lis pendens from being expunged5. Often, lis pendens is taken off if the case is settled without a trial576.
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The Motion to Expunge Process
When a lis pendens is on a property, the owner can work to remove it. They do this through a motion to expunge. This means they file a specific request with the court and follow California’s rules8.
Filing Requirements and Procedures
To file a motion to expunge a lis pendens, follow requirements from California Civil Code § 405.308. Make sure all interested parties know, including the owner and anyone with a loan or a stake in the property9. If you don’t follow all the steps correctly, your request could be denied9.
Burden of Proof and Evidence
Who has to prove their point in a motion to expunge depends on why they’re asking. If the lis pendens is wrong because it wasn’t served right or was not correctly filed, the one asking to remove it must show proof8. Yet, if the problem is there isn’t an actual property claim or not enough evidence to believe the claim is strong, the party that filed the lis pendens must show they’re in the right8. Whoever is trying to remove it has to show why their side is right with legal proof8.
Working with a knowledgeable real estate lawyer is key. They’ll make sure you’re doing everything by the book. This increases your chances of winning9.
| Expungement Ground | Burden of Proof |
|---|---|
| Lis Pendens is “Void or Invalid” | Party Seeking Expungement |
| Lack of Real Property Claim | Claimant Who Filed Lis Pendens |
| Failure to Establish Probable Validity | Claimant Who Filed Lis Pendens |
Protecting Interests through Undertaking
Even if a claimant proves a real property claim is likely valid, the lis pendens can still be removed. This happens if the court thinks giving money will ensure the claimant recovers11. The property owner must then show that a security bond will protect the claimant’s interests if they win in court11. This way, the property owner can clear the lis pendens but still protect the claimant’s right to recover.
The amended lis pendens law in California aims to safeguard property owners more during expungement cases11. Now, a court may clear a lis pendens if an undertaking can adequately support the claimant, even without fully proving their claim11. This fairer system balances the property owner’s need for a clean title and the claimant’s right to recover.
| Case | Undertaking Amount | Outcome |
|---|---|---|
| Reese v. Wong | $35,000 | The court expunged the lis pendens on the condition that the respondents filed an undertaking of $35,00012. |
| BGJ Associates, LLC v. Superior Court | $2 million | The court initially required an undertaking of $2 million, which was later challenged and replaced with a deed of trust on the plaintiff’s property13. |
These examples show how important undertakings are in lis pendens cases. They ensure both the property owner’s and the claimant’s needs are met1213. By requiring the right undertaking, the court can look out for the claimant’s recovery rights. This is while allowing the property owner to settle the title and do real estate deals11.
“The legislature has put in place safeguards to protect property owners in expungement motions, reducing the need for courts to act as gatekeepers.”11
motion to expunge lis pendens california
In California, removing a lis pendens, a claim on a property, follows specific rules14. A property owner can request to remove it by filing a “motion to expunge.”15 This is crucial as it lifts the constraint on selling or using the property.
To succeed in removing a lis pendens, two conditions must be met in California14. First, the related legal document must lack a true claim about the property14. Second, if there is a claim, the owner must fail to prove it’s likely to succeed in court.
The one against removing the lis pendens must prove their claim is strong enough to win14. They do this by showing they are likely to succeed in court, much like trying to get a court order to keep the property.
Filing to remove a lis pendens involves specific steps and legal load points15. In a particular case, a third party managed to remove it and got over $14,000 back in legal fees15.
California changed its rules to avoid misuse and protect property owners more16. Now, even if it’s a separate issue, a second claim on the same property needs court approval16.
Understanding how to deal with a motion to expunge lis pendens california is tricky. It’s best handled by legal experts. They know how to deal with cloud on title issues and the laws around lis pendens in California151614.
Consequences of Unsuccessful Expungement
If a property owner’s motion to remove a lis pendens fails, it stays on the property6. This keeps a cloud on the title17. It can stop the owner from selling, moving, or using the property until the lawsuit is over6. This owner can find it hard to deal with any real estate activities6 because of the lis pendens.
In Castro v. Superior Court18, the Castros asked for over $100,000 in lawyer fees. They did this after trying to remove the lis pendens again18. The court agreed to give them the fees because they won the case to remove the lis pendens18.
Failing to remove a lis pendens can harm a property owner in big ways. It often leads to serious legal and money problems. It’s very important for property owners to know how critical it is to remove a lis pendens successfully. They need to get good legal help to handle the process well61718.
“Knowing when to record a lis pendens and how to deal with an improperly recorded one is critical in real estate law in California.” – Pasic Law
Attorneys’ Fees and Costs
In California, if you win a motion to remove a lis pendens, you might get your attorneys’ fees and costs back19. This money can make a big difference in your choice to fight this legal battle20. But, not everyone can get these fees and costs back; it depends on your case.
The California law, Code of Civil Procedure section 409.3, lets the court give you what it thinks is fair for attorneys’ fees and costs19. This is to prevent people from filing Lis pendens for no good reason. It also helps the property owner pay for the costs of proving their title is clear20.
The court does not always award fees and costs. The law says they can only do it if they find the other party was not justified in their actions19. Even then, if the court thinks it’s unfair to order these fees and costs, they might not do it19.
Sometimes, even if the lis pendens is removed, you might not get your attorneys’ fees reimbursed19. This happens when the attorneys didn’t abuse the legal system but just made a mistake19.
How much you can get in attorneys’ fees and costs varies a lot18. It can depend on how complicated your case is and how much work was needed. One case asked for $4,200, while another wanted over $100,0001918.
Getting back your attorneys’ fees and costs is not sure. But having a knowledgeable lawyer is very important. They can help you understand this complex process and improve your chances of getting your money back192018.
Importance of Skilled Legal Representation
Removing a lis pendens is complex, making skilled legal help vital. Lawyers who know real estate law well and understand lis pendens laws can serve property owners. They offer crucial advice on how to remove a lis pendens and protect real estate assets21.
Expertise in Real Estate Litigation
Skilled attorneys in real estate litigation are key. They know how to check a case’s strength, build strong legal points, and fight in court well. Knowing the ins and outs of lis pendens laws is their strength. This knowledge helps resolve property disputes successfully22.
Understanding the Complexities of Lis Pendens Laws
The laws around lis pendens are hard to follow and can change. A good lawyer understands all the legal requirements and can act in the best way. With their help, property owners have a better chance of removing a lis pendens. They’re crucial in protecting a client’s real estate assets23.
Hiring a lawyer who is both knowledgeable and experienced is critical for property owners. They help take out the lis pendens and keep real estate safe. These professionals are equipped with the right skills and know the law well. They’re essential for winning in property disputes.
Avoiding Future Lis Pendens Filings
Once a lis pendens is deleted, the person can’t easily file it on the same property again24. They must first get the court’s permission. This rule aims to stop unfounded lis pendens that can hurt property owners. It’s important for property owners to watch out for this and be ready to fight back. Doing so will help keep their real estate interests safe.
In 1992, California changed its lis pendens rules to stop past problems. Before, some would settle weak lawsuits just to clear the title24. Now, to keep a lis pendens, the party must show their case is probably right. This change cuts down on lis pendens misuse, making sure only true title disputes and real estate litigation can use this legal claim.
If a lis pendens is wrongly filed, the filer might get in trouble for damaging the title24. This is a big deal legally. Property owners should know this and do something if someone tries to illegally file a lis pendens.
To protect their stake, property owners need to know the lis pendens rules and the risks of misusing it25. Working with legal experts versed in real estate litigation and title disputes is wise. They can help spot and stop any unjust lis pendens filings. This guards the owner’s real estate assets25.
Case Law and Statutory Considerations
In California, removing a lis pendens is a tricky legal task, mixing laws and past cases26. Lawyers need to know the California Code of Civil Procedure well. They must understand how courts have used these laws in the past26. The law reflects earlier cases and sets rules for removing a lis pendens, like what’s needed to show a valid property claim or claim’s likely truth26.
Back in 1968, a law arrived to stop misusing lis pendens, which can cause problems for real estate’s title and be used wrongly by some people26. In 1976, the law changed. Now, it’s easier to remove a lis pendens. The one who wants to keep it must prove why it should stay26. Before that, proving why a lis pendens should be removed was super hard, happening only in really bad misuse cases26.
The goal of the 1968 law was to offer a fix before a judgment to stop bad lis pendens use26. The fix doesn’t decide the whole case but checks if it started for a real reason and with good faith. This is under section 409.126.
Courts have noted that after judgments, one can still try to remove a lis pendens if the reasons are bad or not right27. A law says, if you start a case with a lis pendens, you must show you’re honest about it. If not, you might have to remove it27. The law was adjusted in 1976. Now if the lis pendens-filer can’t prove they were honest, it might go away27.
Only two Appeals Courts dealt with removing a lis pendens after a judgment27. During an appeal, the lis pendens can still be there. But the losing side can try to remove it27. At this point, the trial’s decisions are very important for the lis pendens removal process27.
In one case, the Castros spent lots on lawyers for a second lis pendens removal try18. They asked for over $116,000 in lawyer fees, but the court said no. They weren’t the winning side, based on a rule18. The other party took off the lis pendens before the court decided on the fee issue18.
To sum up, handling a lis pendens issue in California is intricate. It needs a deep understanding of laws and previous cases. Lawyers must be very familiar with all the laws and decisions to help their clients rightly262718.
Conclusion
The motion to expunge a lis pendens in California is key for property owners caught with this issue28. It is vital to know how to do this, what steps to follow, and why getting a good lawyer is so important. This process helps clean up the title of the property and keeps its value safe for selling or buying28. Property owners should always seek advice from experienced real estate lawyers. They know how to handle the legal part and protect the owner’s rights during the expungement.
The laws and rules for erasing a lis pendens show how detailed the process can be28. Things like proving the real property claim is valid, the level of evidence needed, and the chance of new lis pendens cases affect the removal process28. Having a skilled attorney is crucial. They make sure the owner’s side is heard and rights are well defended in every step of the process.
For owners facing property disputes and the marks of a lis pendens, expungement is a powerful solution29. Addressing these issues early and removing a wrong lis pendens reduces harm to the property and its value29. With a knowledgeable real estate lawyer’s help, owners can deal with the legal hurdles well. They are more likely to reach a positive outcome in their expungement case.