[WSBAPT] Lis Pendens

Fri Sep 1 16:56:15 PDT 2023

diane: i think a 20 year cir is valid grounds for a lis pendens.  i won't be the judge of your case, but  you can tell him or her or them that is what i believe:)
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Eric Nelsen <eric at sayrelawoffices.com>
Sent: Thursday, August 31, 2023 3:10 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Lis Pendens

RCW 4.28.230 governs. Lis pendens is only permitted if the filed claims directly affect title to the real property. It is procedural, for notice purposes, and confers no substantive rights. Dunham v. Tabb, 27 Wn.App. 862, 866, 621 P.2d 179 (1980).

I don’t know if propriety of a lis pendens has been resolved in the context of a committed intimate relationship. In a CIR the court can divide the community-like assets, which certainly affects title; but you’re going to be hanging out there a bit because if the court rules there is no CIR, or the real property is not community-like, the lis pendens could be considered wrongful.

The penalty statute is RCW 4.28.238 and there are two standards for an award:

Under (2), if the action does not actually affect title to real property. This would be an issue of law based on the claims made by plaintiff, and I would hope that a judge would recognize that a CIR is an issue regarding equitable ownership and affects title such that lis pendens is appropriate.

Under (3), if the property owner prevails in the lawsuit, and the claimant cannot prove a “substantial justification” for filing the lis pendens. That sounds like a pretty easy bar to clear, so if the CIR is pretty solid (20+ years of cohabitation, engaged even if never married, pooled resources, made a home together, etc.), and the real property was acquired during the CIR so that there is a presumption it is community-like, then even if the court ultimately determines it’s the defendant’s separate property and/or the plaintiff is not allocated any interest, I would hope that the plaintiff nevertheless had “substantial justification.”

Sincerely,

Eric

Eric C. Nelsen

Sayre Law Offices, PLLC

1417 31st Ave South

Seattle WA 98144-3909

206-625-0092

eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Diane J. Kiepe
Sent: Thursday, August 31, 2023 2:44 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Lis Pendens

Hello,

I am hoping someone can help me with a quick answer related to Lis pendens – I have a pc who lived with her Fiancé for like 20 years.  He died, no plan, daughter says get out of the house.  I strongly believe that she has a strong case for interest in the assets (although the Fiancé made significantly more money).  I am wondering what is the legal standard I should be considering before filing a Lis pendens – I know they can’t be filed willie nillie but I also recall hearing that if you file one and your claim is later invalidated you are subject to damages – I would think there is a good faith standard at least.  Hope to research this more but it’s really bothering me at the moment.

Diane J. Kiepe

Douglas Eden, P.S.

717 W. Sprague Ave., Suite 1500

Spokane, WA  99201

djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>

509-455-5300

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