[WSBARP] lis pendens

Mon Feb 26 12:19:33 PST 2018

Well, that’s the beauty of the practice of law – someone always disagrees. 

Interestingly, the Schwab v. Seattle case had nothing to do with a lien – it was about an easement. In fact, the word “lien” is not in the text of the case. 

The Court was most concerned about 3rd parties not having notice of any encumbrance to the title when they stated: “Were we to adopt the narrower reading suggested by New West, potential buyers and encumbrancers would receive no notice of actions concerning easements. We cannot believe the Legislature intended such a result. See RCW 4.28.320 (“From time of filing [of lis pendens] only shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby ...”). Schwab v. City of Seattle, 64 Wn. App. 742, 750, 826 P.2d 1089, 1093 (1992). 

There isn’t any need for a Lis Pendens in a mechanics/materialmen’s lien case because RCW 60.04.091 requires a notice of lien be recorded, so that gives the notice to 3rd parties about the lien. If the legislature wanted to provide that a Lis Pendens was the correct manner to give notice of a litigation arising from a mechanics/materialmen’s lien, they would have provided for filing a Lis Pendens instead of a notice of lien claim. 

The minority position provides an interesting quote from the Restatement of Property:   “In common and legal speech the word “title” normally signifies (1) ownership or when used with appropriate limiting words, a claim of ownership, or (2) the totality of the evidence, that is, the operative facts which result in such ownership or on which the claim of ownership is based.” 

Restatement of Property, sec. 10.

And, there is the case of Bramall v. Wales that states: “A lis pendens may be filed “(i)n an action affecting the title to real property...” RCW 4.28.320. A lis pendens is not proper where it is filed in anticipation of recovering a money judgment.” Bramall v. Wales, 29 Wn. App. 390, 395, 628 P.2d 511, 514 (1981). 

That being the case, isn’t recovery on a mechanics/materialmen’s lien an action “filed in anticipation of recovering a money judgment”? It sure isn’t about title.

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

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Rodgers, Kee, Card & Strophy, P.S.

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Jay Goldstein
Sent: Monday, February 26, 2018 9:04 AM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] lis pendens

I would disagree and the case you cite is the key case:-- Schwab v. Seattle

Lien is an encumbrance on title and accordingly lis pendens is appropriate.

J

Jay A. Goldstein

Of Counsel

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Tom Westbrook
Sent: Sunday, February 25, 2018 12:32 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] lis pendens

IMHO – your client had no legal right to record a Lis Pendens as that is only for circumstances where the issue is about ownership of the property; not a lien. Let the argument begin 😊

A lis pendens is a mechanism for giving notice that a lawsuit that concerns title to real property has been filed. RCW 4.28.320. A lis pendens may be filed “[a]t any time after an action affecting title to real property has been commenced.” RCW 4.28.320. But a party who files a wrongful lis pendens risks liability in damages for doing so. RCW 4.28.328 governs, and it provides in pertinent part,

(a) “Lis pendens” means a lis pendens filed under RCW 4.28.320 . . . or other instrument having the effect of clouding the title to real property, however named. . . .

(2) A claimant in an action not affecting the title to real property against which the lis pendens was filed is liable to an aggrieved party who prevails on a motion to cancel the lis pendens, for actual damages caused by filing the lis pendens, and for reasonable attorneys’ fees incurred in canceling the lis pendens.

(3) Unless the claimant establishes a substantial justification for filing the lis pendens, a claimant is liable to an aggrieved party who prevails in defense of the action in which the lis pendens was filed for actual damages caused by filing the lis pendens, and in the court’s discretion, reasonable attorneys’ fees and costs incurred in defending the action.

Washington courts have not established either a specific definition or guiding criteria to determine when and whether an action “affect[s] title to real property.” RCW 4.28.320. But our courts, in construing other aspects of our lis pendens statutes, have relied on persuasive authority from Arizona, whose own lis pendens law is similar to ours. See Schwab v. Seattle, 64 Wn. App. 742, 748, 826 P.2d 1089 (1992). In determining whether a lis pendens was wrongfully recorded, their courts also consider whether the action is one “‘affecting title to real property.’” Santa Fe Ridge Homeowners’ Ass’n v. Bartschi, 219 Ariz. 391, 395-96, 199 P.3d 646 (Ct. App. 2008) (quoting ARIZ. REV. STAT. ANN. § 12-1191(A)).

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

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Rodgers, Kee & Card, P.S.

324 West Bay Drive NW, Suite 201

Olympia, Washington  98502

Phone: 360-352-8311

Facsimile: 360-352-8501

Email:  <mailto:tjw at buddbaylaw.com> tjw at buddbaylaw.com

Skype: thomas.westbrook

 <http://www.buddbaylaw.com/> www.buddbaylaw.com

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Douglas W. Scott
Sent: Sunday, February 25, 2018 11:35 AM
To: WSBA Real Property Listserv (wsbarp at lists.wsbarppt.com) <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] lis pendens

Client filed Lien for excavation work against a subdivision.  I foreclosed on Lien in KC Superior and recorded a Lis Pendens.  Attorney for owner will issue a 1 1/2 times bond and has demanded that the Lis Pendens then be dismissed as it is interfering with sales of the lots or he will claim atty fees under RCW 4.28.328.  I see no need to remove the lis pendens as the bond is supposed to allow the properties to sell since the bond now guarantees payment of any judgment.  Does my client have exposure for not removing the lis pendens after the bond is in place? 

Douglas W. Scott

Law Offices of Douglas W. Scott

Windermere Building

1810 15th Place NW, Suite 203
Issaquah, Washington, 98027
V.  425.392.8550
F.  425-392-2829 

www.davisscottlaw.com <http://www.davisscottlaw.com/> 

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