123ArticleOnline Logo
Welcome to 123ArticleOnline.com!
ALL >> Real-Estate-and-Foreclosure >> View Article

The Pending Real Estate Litigation Standard In Arizona

Profile Picture
By Author: Christopher Combs
Total Articles: 15
Comment this article
Facebook ShareTwitter ShareGoogle+ ShareTwitter Share

When filing a lawsuit for specific performance for the sale of a home or other real property contract, buyers often employ the standard legal tactic of contemporaneously recording a notice of lis pendens (lis pendens is Latin for pending litigation) with the County Recorder's Office. This lis pendens places any other buyer on notice that the title to the property is involved in real estate litigation. Moreover, a lis pendens prevents any other buyer from acquiring any interest in the property superior to that of the original buyer. Additionally, as a practical matter, because title insurance companies will not insure title to a property against which a lis pendens is recorded, a property with a lis pendens cannot be sold.

After a lis pendens is recorded, the first question a seller generally asks is How soon can I remove the lis pendens against my property so that I can sell it to another buyer? After informing the seller that pursuant to A.R.S. § 33-420(B) the seller is entitled to a prompt hearing on the validity of the lis pendens, the second question asked by the seller is What must be proved at this hearing to ...
... invalidate the lis pendens?

The Arizona Court of Appeals in Evergreen West, Inc. v. Boyd, 167 Ariz. 614, 810 P.2d 612 (Ariz. Ct. App. 1991), established a groundless standard for invalidating a lis pendens before resolution of the specific performance lawsuit (which may last years). In other words, the seller seeking to invalidate the lis pendens carries the burden of proof to establish that the claim upon which the lis pendens is based is groundless (i.e., frivolous or totally without merit). This groundless standard promulgated by the Court of Appeals in Evergreen West establishes the lowest possible threshold for invalidating a lis pendens prior to resolution of the specific performance lawsuit.

In 1992 our neighboring jurisdiction of California established a much tougher standard which better protects sellers. California's standard requires the trial court to make a threshold inquiry into whether the claimant has . . . established by a preponderance of the evidence the probable validity of the real property claim. Cal. Civ. Proc. Code § 405.32 (emphasis added). In other words, unless the buyer will probably prevail at trial, the lis pendens will be ruled invalid and the seller will be immediately entitled to sell the real property while the lawsuit proceeds to resolution.

In conclusion, requiring an inquiry into the buyer's underlying facts and legal position, to determine whether the buyer's claim for lis pendens has at least a probable chance of succeeding at trial, is an excellent rule. A lis pendens should not be used as a weapon by buyers to tie up properties and extort concessions from sellers. Accordingly, the Arizona Court of Appeals or the Arizona legislature will hopefully modify Evergreen West's ruling in the future and establish a higher standard, requiring a buyer to prove the probable validity of a lis pendens at the beginning of the litigation.

Note: Even if the lis pendens is ruled invalid, any buyer with actual knowledge of the title dispute will not be protected if the original buyer wins the lawsuit. Furthermore, the seller is required to disclose this title dispute to any buyer and, if the seller does properly disclose, any buyer will have actual knowledge of the title dispute. Therefore, as a practical matter, even if the lis pendens is ruled invalid, a sale of the real property will only be valid if the seller does not disclose and the buyer does not have any actual knowledge of the title dispute.

Article Source: CombsLawGroup.com

Total Views: 79Word Count: 598See All articles From Author

Add Comment

Real Estate and Foreclosure Articles

1. Central Goa Unveiled: Where Serenity Meets Convenience
Author: Yoggendar Shinde

2. Ganga Anantam In Sector 85, Gurgaon
Author: Ganga Anantam

3. Discover The Benefits Of Cash Offers With Dave Friedman
Author: Dave Friedman

4. Mahindra Lifespaces Set To Enhance Mumbai's Skyline With New Project In Malad West
Author: New Property Launch

5. The Daily Responsibilities And Challenges Of Property Managers
Author: sahasra

6. Pg Near Chirag Delhi: The Ultimate Guide For Comfortable Living
Author: Sumit Chauhan

7. Personal Shopper Spain
Author: amelia johnsons

8. Housing Market Is At Risk: Mass Deportation Planned By Trump Raises Concerns
Author: arrealtorkolkata

9. A Brief Look At The Benefits And Uses Of Plaster Sand
Author: doctorsand

10. Land Case Search In India
Author: TitleSuit

11. Door Step Service For Document Registration In Telangana
Author: TitleSuit

12. Preparing Your Property For A New Tenant – A Step-by-step Guide
Author: sahasra

13. How Can I Find Court Cases On Property Online In Andhra Pradesh?
Author: TitleSuit

14. Explore Real Estate Listings In Ilopportunities In Peaceful Illinois Neighborhoods
Author: Ellie Smith

15. What To Look For In A Residential Property In Mumbai
Author: Horizon Consultants

Login To Account
Login Email:
Password:
Forgot Password?
New User?
Sign Up Newsletter
Email Address: