Code of Civil Procedure (CCP) Section 872.250 - Lis Pendens in Partitions

Code of Civil Procedure section 872.250 is another procedural statute for partition action that mandates the filing of a lis pendens by the plaintiff. A lis pendens gives notice to any future persons who may acquire an interest in the property that there is a pending lawsuit on the real property which could affect the real property’s title.

Code of Civil Procedure section 872.250 states

(a) Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.

(b) If, thereafter, partition of other real property is sought in the same action, the plaintiff or other person seeking such relief shall immediately record a supplemental notice.

(c) If the notice is not recorded, the court, upon its own motion or upon the motion of any party at any time, shall order the plaintiff or person seeking partition of the property, or another party on behalf of the plaintiff or other person, to record the notice and shall stay the action until the notice is recorded. The expense of recordation shall be allowed to the party incurring it.

(d) From the time of filing the notice for record, all persons shall be deemed to have notice of the pendency of the action as to the property described in the notice.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

“Shawn” and “Julie” are an unmarried couple who bought a house in Los Angeles together as joint tenants. Shawn and Julie each have a fifty percent ownership interest in the property.

Eventually, the couple’s relationship deteriorates. Shawn decides to file a partition action. After filing his complaint, Shawn files a lis pendens with the Los Angeles County recorder. The lis pendens gives notice of the partition lawsuit on Shawn and Julie’s home to everyone.

Shawn tries to get a loan on the house, but the creditor sees the lis pendens and refuses to give Shawn a loan. Since the lis pendens indicates that the house’s title is in doubt, many entities will decline to do any transactions involving the house.

The trial court issues an order for a partition by sale. Shawn motions to expunge the lis pendens so that he can sell the property in accordance with the court’s judgment, which is granted.

If Julie appeals the trial court’s judgment however, then the lis pendens is still active. Shawn may still try to sell the house, but buyers are unlikely to buy property with a lis pendens. This is because if Shawn loses the appeal, then the sale would become void.

1976 Addition

Subdivisions (a) and (d) of Section 872.250 continue provisions formerly found in Section 755. The detailed listing of the contents of the lis pendens formerly found in Section 755 is omitted since Section 409 covers this matter. The requirement of recording a lis pendens is not jurisdictional. Rutledge v. Rutledge , 119 Cal.App.2d 114, 120, 259 P.2d 79, 82 (1953). Failure to so file, however, may result in subsequent bona fide purchasers and encumbrancers of record at the time the judgment is recorded not being bound by the partition judgment. See Section 874.220 (persons not bound by judgment).

Subdivision (b) is new. The duty under subdivision (b) is upon the person seeking to join additional property to record the lis pendens; this might be either the plaintiff or a cross-complainant.

Subdivision (c) is new. The recording of the lis pendens is an important step in the partition action. Prompt recording enables the court to deal with the title with certainty. The person required to record might be either the plaintiff or a cross-complainant.

Section 872.240 is one of several partition statutes without a comment from the Assembly Committee. This is not to say, however, that the Committee provided no guidance on this particular statute. Instead, when the Legislature passed the 1976 changes to California’s partition laws, they in large part adopted the Revision Commission recommendations.

The introduction to Assembly Bill 1671 (the bill that brought about the 1976 changes) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” As such, it’s fair to say that the Revision Commission comment is in line with the Legislature’s own feelings about this particular statute.

Here, the comment could not be more explicit. The recording of the lis pendens is an important step in any partition.

That’s because the lis pendens imparts constructive notice to subsequent purchasers of the property that litigation is pending that affects the real property described in the notice to the extent the action is pending against the parties named in the action. (CCP § 405.24.) Thus, any judgment in the action will be binding on subsequent parties even if they acquire their interest before judgment is actually rendered. (Arrow Sand & Gravel, Inc. v. Superior Court (1985) 38 Cal.3d 884, 888.)

In other words, the lis pendens ensures that the property isn’t being sold until the court appoints a partition referee to do so. Anyone who tries to buy the property before the matter is resolved won’t be deemed a bona-fide purchaser, thereby providing the innocent party an avenue to void a surreptitious sale.