Lis Pendens Expungement
Orange County Lis Pendens Expungement Attorney
Lis pendens make selling property or acquiring mortgages difficult if not impossible. However, California courts have discretion to remove the notices at any time after the lis pendens has been filed with the recorder. There are several ways that lis pendens can be removed.
First is through an expungement based on a claim that the party who filed the lis pendens (the claimant) cannot show probability that they have a valid property claim. The party who filed the lis pendens has the burden of proof to show that it has a valid property claim. The court may order discovery for these expungement hearings at its discretion. The lis pendens will be expunged from the county recorder’s office on the property if the court determines by a preponderance of the evidence that the claimant cannot show probability of a valid of a property right.
However, if the lis pendens is removed the court may order that the party seeking expungement of the lis pendens provide an undertaking, which is an adequate amount of money or property to be given to the party seeking to establish its property rights (the claimant) in the event that they win their lawsuit. The undertaking will pay for all the costs that the claimant incurred in trying to prevent the lis pendens from being expunged. Conversely, the court may also require the claimant to file an undertaking to reimburse the property owner in the event that the claimant is unsuccessful.
Additionally, the prevailing party in a lis pendens expungement will be awarded attorneys fees and costs for making or opposing the motion for expungement. Although, the court has discretion to make each side pay their own costs if the court believes that the losing party had substantial justification or if the awarding of attorney fees and costs would be unjust.
Another means of removal is by showing that the lis pendens was filed for an underlying action that does not involve a real property claim. A court must expunge the lis pendens if the claimant does not actually seek a remedy that would affect the title, interest rights, or use of a non-public utility easement in real property.
Finally, if a lis pendens was brought in bad faith and for an improper purpose it will be expunged. This means that not only does the claimant not have a real interest in the property, but the claimant knew that they did not have a real interest in the property. Additionally, it must be shown that the claimant acted for an improper purpose, which could include:
- To deny the owner beneficial use of the property.
- Bringing the action out of ill will.
- Forcing settlement with no relation to the underlying merit of the claims.
In these cases courts are much more likely to award attorneys fees and costs. The property right owner has a higher probability of bringing a successful claim for slander of title when lis pendens are filed in bad faith with an improper purpose.
Orange County Lis Pendens Expungement Lawyer
The Law Offices of Tony T. Liu handles real estate litigation including lis pendens motions. Mr. Liu will explore your legal options to get your title cleared and compensation from the damages from improper use of lis pendens. To schedule a consultation with an experienced California real estate attorney call (714) 415-2007 today.