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Seattle real estate attorneys, real estate brokers, and escrow
companies deal with the "lis pendens" from time to time, and many
people are not sure what it means. The Latin definition is
simply: notice of a pending lawsuit.
The Revised Code of Washington defines "lis pendens" as an
"instrument having the effect of clouding the title to real
property, however, named, including consensual commercial lien,
common-law lien, commercial contractual lien, or demand for
performance of a public office lien." RCW 4.28.328 (1)(a). Is
recording a lis pendens, thus, a violation of the owner's
procedural due process, i.e., the right to notice and an
opportunity to be heard?
Not according to Cranwell v. Mesec, 77 Wn. App. 90, 890 P.2d 491
(1995), where the court determined that unlike a lien, a lis
pendens is not a significant property interest, and though
"substantial economic effects" may result from it, the effects do
not "constitute a significant enough deprivation by the state so
as to require that the landowner be given an opportunity to be
heard in advance of filing." The court reasoned that owners, even
though subject to a lis pendens, can still sell the property,
provided "the landowner can find a willing buyer."
A lis pendens is not a lien. A lawsuit, for example, must be
commenced before a lis pendens may be filed whereas a lien,
whether construction, landowners' associations, or taxing
agencies, is recorded before a lawsuit is started, and the holder
may thereafter bring an action to foreclose on the lien, but does
not have to. Pre-litigation liens areprocedurally tricky and may
have contingent deadlines before a suit is allowed to be filed. A
construction lien for example, also known as a mechanic's lien,
must be recorded on the title of the property to which a
registered contractor is performing improvements within 90 days
(residential) or 60 days (commercial) of the date the contractor
last performed work on the job. A lawsuit must then be brought to
foreclose on the lien within eight months of the date it was
recorded.
A lis pendens, on the other hand, is tied to an existing lawsuit
and expires when the litigation is over. It does not have to be
recorded at the instant the lawsuit commences, but any time up to
60 days thereafter, though early is best for the reasons
explained below. Incidentally, after a lawsuit is commenced, say
on a construction lien, a lis pendens maythen be recorded on the
same property subject to the lawsuit.
The real strength in the lis pendens is defined by statute:
From the time of the filing (of the lis pendens) only shall the
pendency of the action be constructive notice to a purchaser or
encumbrancer of the property affected thereby, and every person
whose conveyance or encumbrance is subsequently executed or
subsequently recorded shall be deemed a subsequent purchaser or
encumbrancer, and shall be bound by all proceedings taken. RCW
4.28.320.
In assuming priority over purchasers or lienors, the lis
pendensfunctions like a pre-litigation lien. When it is recorded,
the law treats it as notice to everybody, whether they see the
actual recording or not. This is called "Constructive Notice,"
where every person is warned their conveyance or encumbrance
recorded after the lis pendens is second to it, and subject to
the outcome of the lawsuit. In other words, as in the Cranwell
case, where the owner of the property could have readily obtained
a loan by a lender who would have recorded a deed of trust on the
property, the lender hesitates because its encumbrance could be
vitiated by the outcome of the lawsuit.
It cannot be stressed enough that grounds for a lis pendens must
affect title to the property. For example, recovering a money
judgment is notan action on the title. Bramall v. Wales, 29 Wn.
App. 390, 395, 628 P.2d 511 (1981). Nor is the enforcement of a
restrictive covenant, Foster v. Nehls, 15 Wn. App. 749, 753, 551
P.2d 768, 772 (1976). An action involving a short plat was not
enough where the plaintiffs "believed" property would revert to
them, and damages were awarded to the plaintiff for the wrongful
recording of a lis pendens. Richau v. Rayner, 98 Wn. App. 190,
198, 988 P.2d 1052 (1999). An action on an easement, however,
does affect title, and the plaintiff may record a lis pendens.
Schwab v. City of Seattle, 64 Wn. App. 742, 826 P.2d 1089
(1992).
To be procedurally sufficient, lis pendens must contain the names
of the plaintiff and defendant, a description of the causes of
action, and identification of the real property affected by the
litigation. A form for a lis pendens looks like this (thanks to
1A WAPRAC ยง 53.35 Notice of LisPendens):