How To Expunge a Lis Pendens in California
How To Expunge a Lis Pendens in California
When a lawsuit is filed that may involve real property, sometimes a party can record a notice of pendency of action or a“lis pendens” against the affected real property. A lis pendens is a recorded document giving third-parties notice that a lawsuit been filed that may affect title to the property at issue. The existence of a lis pendens is a cloud on title that can render selling real property difficult if not impossible. Fortunately, there is a process that property owners can use to remove or “expunge” a lis pendens.
Motion to Expunge Lis Pendens
California Code of Civil Procedure section 405.30 allows a property owner to remove a lis pendens by bringing a “motion to expunge.” There are several bases for a motion to expunge, including: (1) the lack of a real property claim, (2) the claimant’s failure to establish a “probable validity of their claim, or (3) the claimant’s interest can be protected by the giving of an undertaking. When a motion to expunge is filed, the party opposing the motion to expunge has the burden to establish that the lis pendens is appropriate.
Real Property Claim
Code of Civil Procedure section 405.31 allows a lis pendens to be expunged where the Complaint does not state a “real property claim.” A real property claim is any claim that, if successful, would affect someone’s title or right to possession of real property. Claims that seek money only do not support a lis pendens, even if they are somewhat related to real property. Thus, if the claims in the Complaint do not affect someone’s title to real property, a motion to expunge the list pendens should be granted.
California Code of Civil Procedure section 405.32 allows for a lis pendens to be expunged where the claimant cannot prove a probable validity of its claims. To show a probable validity, a claimant must prove the factual merit of its claim by a “preponderance of the evidence.” In other words, the claimant must show that it is more likely than not that it will prevail on its claim at trial. If the claimant is unable to do so, the lis pendens will be expunged.
Undertaking or Security Bond
Even if the Complaint states a “real property claim,” and the claimant proves a probable validity of its claim, a lis pendens must still be expunged if adequate relief can be secured to the claimant by the giving of an undertaking. Thus, a party may expunge a lis pendens if they are willing to deposit with the Court a sum of money that will be sufficient to pay the claimant for all damages it may suffer as a result of the removal of the lis pendens should that claimant be successful at trial.
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