Lis Pendens: To Expunge or Not to Expunge

The lis pendens is in some respects, a provisional remedy, that is, a remedy used by a party in litigation prior to a trial or resolution of the whole case. Some courts consider it in another respect, a notice. I won't say "just a notice", because it's effect is greater than just notifying a would-be buyer or transferee that the property is the subject of litigation. In most cases, it simply brings to a halt any effort made by a seller/defendant to transfer or sell the property, since no transferee would voluntarily assume a problem like this.

Does that mean it's a weapon? No, just a tool. And a tool only to be used when there is a sincere concern that possession or title to the property could be lost forever. And a sincere belief (because in most cases this will have to be proven to a judge in a motion to expunge the lis pendens) that the plaintiff will prevail at trial on their action, and the action involves title to or possession of the property.

It's the latter point, the action must involve title to or possession of real property, that is the subject of most disputes in court over whether a lis pendens was properly filed. Sure, the case itself must have merits, but it must specifically address title or possession.

For example, a suit over money owed from A to B should not involve a lis pendens over A's property unless the money involved a sale from B to A of real estate and A can show that he/she was defrauded out of his/her property, or something of that nature. Court's understandably so, are reluctant to uphold a lis pendens unless there is a real property claim and the claim has merits.

So if you're property is tied up by a lis pendens, or you're looking at filing and recording a lis pendens in conjunction with a complaint, look carefully at when and why this is allowed.

A Delicious Break from Court

I'm having lunch in downtown San Jose before a court hearing yesterday (at a wonderful cafe named Cafe Rosalena) and I leave with a loaf of cinnamon bread from the bakery next door. Turns out that I took home a very popular, amazing cinnamon bread. Since I don't live in San Jose, or anywhere in the bay area for that matter, I would be out of luck if I wanted more of this delicious bread, at least until my next trip to the west. But I'm in luck, and so is anyone else who discovers this bread. Not only is it available at many local stores that have discovered it, but you can order it online. It's called Greenlee's Bakery. It's on The Alameda, about 1/2 mile west of HP Pavilion.

What's this have to do with real estate? Well, my hearing was on a motion to expunge a lis pendens. That'll have to do for now. More on the realities of filing a lis pendens, and having a lis pendens removed, in later posts.