justice-smiles-green-large.pngA Lis Pendens is the filing of notice that a lawsuit has been commenced against a real property owner. This is a recorded document that is filed against the property, not at court, along with all the other documents such as deeds, boundary line adjustments, easement, covenants … at the county auditor or recorder’s office which normally receives such documents regarding real property.

The purpose for filing a Lis Pendens is to provide constructive notice [which you may recall from my Hogan’s Hero’s Sargent Schultz analogy here] to all potential future property owners. This puts any prospective property owners on notices that should they purchase the real property, they will be deemed to have purchased it subject to the lawsuit. As a result, these purchasers must abide by the outcome of the lawsuit instead of being able to claim that they are bona fide purchasers without such an obligation.

Use of a Lis Pendens is a procedural doctrine previously outlined in Civil Rules – CR 3(d). Yet, go there now and you will be pointed to two statutes. The later, RCW 4.28.160 regards how a lis pendens effects the rights of unknown claimants and heirs and thus more applicable to probate.

More importantly CR 3(d) points to RCW 4.28.320 which specifies when a lis pendens can be timely and applicable filed [or for clarity perhaps the better term would be recorded]. With regards to boundary dispute matters, these are resspectively: (a) following commencement of an action [which can be performed first by filing or service of process (so long as the other task is completed within 90 days)] and (b) by recording the notice within 60 days after service on person or by publication.

[Here, I will note that any real estate case in which you are seeking service by publication is likely either sufficiently complex, bizarre, or both that you should be working with competent counsel.]

What do I thing about Lis Pendens? Well, while they are an excellent means of creating leverage against another property owner who just happens to be in in your crosshairs, Lis Pendens also very possibly will have the effect of slandaring title and thus drawing a counterclaim. 

Now assuming that you are willing to take that risk by using such a blunt legal construct, there is another line of thought to ponder. Doesn’t the effect of slandaring someone else’s title potentially slander one’s own? And doesn’t doing so to some greater or lesser extent more permanently lock you and your neighbors into litigation stances? And again, who is now going to purchase that house and relieve you of an adjoining property owner who just happens to also be your enemy?

And say you do resolve everything and you remove the Cloud on Title that recording of your Lis Pendens has created. What next? In other words, who is going to want to purchase a property knowing that the neighbor – i.e. YOU – are going to be ‘neighbor(s) from hell’?

Do you get my point! Why would you want to make it more onerous for your neighbor to move away from you?

No, instead consider alerting the neighbor’s real estate agent of the issue(s) and seek for them to resolve it. If they don’t properly react, ask for them to have the Form 17, which discloses potential and latent defects, to specify that there is a boundary dispute.

To put a little more (nuanced) muscle behind this, have a real estate attorney – preferably one who works in the arena of resolving warring neighbors’ issues – send the letter. If that attorney is one who properly crafts and drafts the letter to balance ‘carrots and sticks’ (one of which may be the recording of the Lis Pendens after the agent has failed – thereby potentially allowing you another target), you will hopefully be able to gain your result without exposing yourself to a lawsuit which will run in the 10s of thousands of dollars. Relatively speaking, that approach makes sense … wouldn’t you agree?justice-smiles-green.png