In the recently-decided case of Park 100 Investment Group II v. Ryan, two attorneys were sued for wrongfully recording a lis pendens in a prior action.
A lis pendens, or more modernly called a Notice of Pending Action, is simply a document recorded in the County Recorder’s Office that provides notice that a lawsuit is pending in the Superior Court that affects title or possession of the designated real property.
In the published portion of the opinion, the Second Appellate District held that it is proper to record a lis pendens on a dominant tenement in an easement dispute. The dominant tenement is the parcel using the easement, but not owning the land on which the easement sits. A common example is a shared driveway. If neighbor A owns the land the driveway is paved over, but neighbor B has the right to use the driveway to get to his or her own house, neighbor B owns the “dominant” tenement and neighbor A has the “servient” tenement. Accordingly, if a dispute arises over the easement, the dispute is primarily over the servient tenement—not the dominant tenement.
The issue in this case was that neither the title nor possession of the easement user’s parcel was an issue in the lawsuit, and thus the appropriateness of the lis pendens was challenged. Using the example above, essentially the dispute arose over the use of an alleyway—but a lis pendens was recorded against the land with the right to use the alley, not the just the alley itself.
Procedural and Factual Background
In Park 100, a dispute arose between the owners of two adjacent properties, the Heron and Oviatt Buildings, over the use of an alleyway between the buildings. The alleyway lies on the Heron Building property, in downtown Los Angeles.
In any metropolitan setting, such as San Francisco, San Jose or Los Angeles, the real estate of the alley way has become much more valuable. In downtown Palo Alto, it is not uncommon to see outdoor seating and dining in the alleys. Accordingly, commercial leases, conditional use permits, and related agreements often factor in negotiating the use of outdoor space.
In 1985, the two parties entered into a ten year contract allowing the owners of Oviatt to use the alleyway. After the contract expired, the Oviatt owners continued to use the easement. Heron thereafter sued Oviatt to quiet title on Heron’s behalf and recorded a lis pendens against both properties.
Oviatt filed a motion to expunge the lis pendens, alleging that the complaint did not involve title or right to possession of Oviatt property. The trial court granted the motion to expunge, concluding that since the litigation did not involve title or possession of the Oviatt property, there was no real property claim as is required when recording a lis pendens.
Oviatt thereafter sued the Heron’s attorneys for improperly recording a lis pendens. The Heron attorneys brought an anti-SLAPP motion, arguing in part that the lis pendens was properly recorded. After the trial court denied their motion, the Second Appellate District reversed, holding that a lis pendens may be recorded on the dominant tenement in an easement dispute.
In holding that a lis pendens may be recorded against a dominant tenement in an easement dispute, the Court relied on both the lis pendens statutory scheme and case law.
The Court relied heavily on Kendall-Brief Co. v. Superior Court (1976) 60 Cal.App.3d 462 in their analysis. At the time that Kendall-Brief was decided, the lis pendens statute merely stated that recordation of a lis pendens was authorized in an action “concerning real property or affecting the title or the right of possession of real property …”
In Kendall-Brief, a dispute arose over the use of private roads to access real property. Although title to the dominant tenement would not be affected if an easement right was shown to exist, without use of the private road, the owners “right to possession” would clearly be impaired. Specifically, the owners would not be able to access their property and the land would lie fallow. Based on this finding, the Court determined the statutory requirement had been met and recordation of a lis pendens was proper.
The holding of Kendall-Brief was codified in the 1992 amendments to Code of Civil Procedure sections 405.20 and 405.4. C.C.P. § 405.20 allows a party to an action asserting a “real property claim” to file a lis pendens. C.C.P. § 405.4(b) defines a “real property claim” as a cause of action which would, if meritorious, affect the use of an easement.
In Park 100, Oviatt argued that the statutory scheme and the holding of Kendall-Brief should be limited to permit the recording of a lis pendens on (1) the dominant tenement only when the dispute involves a landlocked piece of property, or (2) the servient tenement. The Second Appellate Court rejected this argument, noting that even when a parcel is not landlocked, lack of an easement can have a devastating effect. The Court also examined the legislative history, which made no such distinction between a lis pendens placed on a dominant or servient tenement. The Court thus left open the possibility of recording a lis pendens in virtually any type of easement dispute.
In holding that the Heron attorneys’ recording of the lis pendens was proper, the appellate court determined that the trial court erred in denying the anti-SLAPP motion.
The reasoning of Park 100 is very sound, at least with respect to the facts of that case. There, where a neighbor had a dispute over the land access, he or she had the right to sue the holder of the easement right, and record a notice pending action on BOTH properties – giving notice to any prospective purchasers of the dominant tenement that there was a dispute over the road access.
However, this holding gives an opening for new litigation to test the expanded use of the lis pendens.
Despite the holding in Kendall-Brief and subsequent codification, recording a lis pendens in an easement dispute is an infrequently discussed and cited area of law. However, with the publication of Park 100 Investment Group II v. Ryan, it will be interesting to monitor the development of this aspect of the law.
Simon Offord, Esq., is a California real estate attorney with The Law Office of Peter N. Brewer, in Palo Alto, California. The firm serves the legal needs of homeowners, real estate and mortgage brokers, agents, title companies, developers, investors, and other real estate professionals and their clients. Mr. Offord and his firm also represent clients in debt collection, creditor representation in bankruptcy proceedings, breach of contract matters, and other litigation and transactional work. The firm’s clients include homeowners, brokers and lenders, and other real estate professionals throughout Northern California. Peter N. Brewer also contributed to this article.