By Attorney Christopher Brainard – California Real Estate and Litigation Attorney
In California real estate litigation, few tools are more powerful—or more misunderstood—than the lis pendens. Also known as a Notice of Pendency of Action, this legal instrument allows a plaintiff to effectively “cloud” the title of real property during a pending lawsuit, warning third parties that the outcome of the case could affect ownership or possession.
But here’s the catch:
In California, only an attorney can properly file and serve a lis pendens.
If you’re a property owner, investor, or party to a real estate dispute, it’s critical to understand both the power and limits of this legal tool—and the legal risks of misusing it.
📌 What Is a Lis Pendens?
“Lis pendens” is Latin for “suit pending.” In practice, a lis pendens is a public notice recorded with the county recorder’s office that alerts potential buyers, lenders, and others that:
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A lawsuit involving that property is ongoing, and
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The case may affect title, ownership, or possession rights
Once recorded, the lis pendens becomes part of the chain of title, discouraging:
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Buyers from closing
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Lenders from issuing loans
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Title insurers from issuing clean policies
In short: it freezes the marketability of the property.
⚖️ Who Can File a Lis Pendens in California?
Under California Code of Civil Procedure § 405.20, a lis pendens may be recorded only in a legal action that involves a real property claim. This includes:
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Quiet title actions
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Specific performance of a real estate contract
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Partition actions
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Foreclosure disputes
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Easement and boundary disputes
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Fraud claims that seek to undo a property transfer
📌 Important: A claim for money damages—even if related to real estate—does not qualify.
👨⚖️ Why Only Attorneys Can File a Lis Pendens
Under California Code of Civil Procedure § 405.21, the lis pendens must be:
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Signed by an attorney of record
The law requires attorney involvement to prevent abuse—because a lis pendens can:
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Paralyze the transfer or sale of real property
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Harm the reputation and finances of innocent parties
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Be used as leverage in unrelated disputes if misapplied
🧨 The Risks of Misusing a Lis Pendens
Wrongfully recording a lis pendens—especially in a case that does not involve a real property claim—can lead to serious consequences:
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Motion to expunge the notice (and possible sanctions)
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Attorney’s fees awarded to the prevailing party
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Civil liability for slander of title or abuse of process
In short: a lis pendens is not a negotiating tactic. It’s a serious legal filing with powerful consequences.
🔎 How a Lis Pendens Impacts a Real Estate Transaction
Once a lis pendens is recorded:
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Title companies will flag the cloud on title
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Lenders will likely refuse financing
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Buyers will typically walk away
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Escrow cannot close until it’s removed or the case is resolved
This gives the plaintiff leverage to preserve the status quo—but also creates urgency for resolution.
✅ When a Lis Pendens Is Appropriate
A properly filed lis pendens is a powerful and appropriate tool when your lawsuit seeks to affect ownership, title, or possession of real estate.
Examples:
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Suing to enforce a right to purchase property under a contract
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Undoing a fraudulent deed transfer
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Seeking partition of jointly owned property
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Litigating boundary encroachments or adverse possession
In these cases, the lis pendens puts everyone on notice—and prevents third-party transfers that could undermine your case.
📍 How to Remove or Expunge a Lis Pendens
If you're a defendant facing a lis pendens you believe is improper, you can:
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File a motion to expunge under CCP § 405.30
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Challenge whether the action involves a “real property claim”
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Demand proof of probable validity of the claim
If successful, the court may:
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Remove the lis pendens from the public record
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Award attorney’s fees for wrongful recording
🧠 Bottom Line: Use It Wisely—and With a Lawyer
The lis pendens is one of the most effective tools in California real estate litigation—but it must be used with precision and care. Whether you’re filing one or fighting one, the law requires:
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Strict procedural compliance
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Legal justification tied to real property rights
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Attorney representation, unless the court says otherwise
Let LawBrainard Help You Navigate Real Estate Litigation
As an experienced California attorney, we help clients:
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Draft and file valid lis pendens notices
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Defend against improper filings
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Litigate property ownership and contract disputes
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Protect real estate investments through strategic legal action
📞 Call (310) 266-4115
🌐 Visit: www.LawBrainard.com
🗓 Schedule a consultation to protect your rights and your property.
Christopher Brainard is a California litigation and business attorney with experience in complex real estate disputes, title claims, and corporate ownership conflicts. He helps clients enforce and defend property rights through skilled legal strategy.
*This article/blog is provided for informational and educational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship between you and Christopher Brainard, Esq. An attorney-client relationship can only be formed through a written and signed agreement with Christopher Brainard. If you need legal advice about your specific situation contact us for a consultation. [Christopher Brainard, 651 N. Sepulveda Blvd., #2010, Bel Air, CA 90049. Tel: (310) 266 - 4115. Email: christopherbrainard@gmail.com].