Motion to Discharge Lis Pendens in Idaho

Understanding the Purpose and Significance of a Motion Discharge Lis Pendens

“The proper purpose of a lis pendens is to provide constructive notice to third parties that an action affecting title to real property is pending.” (See I.C. sub. sec. 5–505; Berkshire Investments, LLC v. Taylor (2012) 153 Idaho 73, 85.)

“A lis pendens is a notice to the world of the existence of a claim affecting certain real property.” (See I.C. sub. sec. 5-505; Joseph C.L.U. Ins. Assoc. v. Vaught (1990) 117 Idaho 555, 557-58; Suitts v. First Security Bank of Idaho, N.A. (1979) 100 Idaho 555, 559, 602 P.2d 53, 57.)

“The lis pendens does not purport, by itself, to establish or to change anyone's legal rights.” (See id.)

“Of course, the filing of a lis pendens may highlight a possible legal problem affecting the property, thereby inducing an extra measure of caution by potential purchasers or lenders until the litigation is concluded.” (See id.)

“But this does not mean that any underlying legal rights have been altered.” (See id.)

“By parity of reasoning, the removal of a lis pendens, as the result of a settlement or judgment, has no effect on legal rights.” (See id.)

“It simply is a signal that a dispute over those rights has been resolved.” (See id.)

Procedural Steps Involved in Filing a Motion Discharge Lis Pendens

“The purpose of a lis pendens is simply to give notice of the pendency of a lawsuit affecting the title or the right to possession of real property.” (See Benz v. D.L. Evans Bank (2012) 268 P.3d 1167, 1175.)

“As Idaho Code section 5–505 states: in an action affecting the title or the right of possession of real property, the plaintiff at the time of filing the complaint, and the defendant at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterward, may file for record with the recorder of the county in which the property or some part thereof is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action or defense, and a description of the property in that county affected thereby.” (See id.)

“From the time of filing such notice for record only shall a purchaser or incumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action, and only of its pendency against parties designated by their real names.” (See id.)

“The filing of a lis pendens is necessary only for the purpose of giving record notice to subsequent purchasers or encumbrancers of the property who have not actual knowledge of the action or of the claim upon which it is based.” (See Benz v. D.L. Evans Bank (2012) 268 P.3d 1167, 1176.)

Lis Pendens and Third Parties

“The doctrine of lis pendens refers to the common law principle that when a third party — with actual or constructive notice of a pending action involving real property — acquires an interest in that real property from a party to the action, then the third party takes subject to the rights of the parties in the action as finally determined by the judgment or decree.” (See 54 C.J.S. Lis Pendens sub. sec. 2 (1987); Sartain v. Fidelity Financial Services (1989) 116 Idaho 269, 272; Maxwell v. Twin Falls Canal Co. (1930) 49 Idaho 806, 292 P. 232; and Suitts v. First Security Bank of Idaho, N.A. (1979) 100 Idaho 555, 602 P.2d 53.)

“Idaho Code sub. sec. 5-505 provides for the filing of a lis pendens which serves as constructive notice under the doctrine.” (See Sartain v. Fidelity Financial Services (1989) 116 Idaho 269, 272.)

“When a subsequent purchaser or encumbrancer has actual knowledge of an action affecting its right or interest in real property, a notice of lis pendens need not be filed by the party advancing the claim.” (See id; Smith v. Faris-Kesl Construction Company, Ltd. (1915) 27 Idaho 407, 427, 150 P. 25, 32; Harvey v. Sanders (1975) 534 P.2d 905.)

“However, if a third party acquires rights to property before receiving actual notice that an action affecting the property has been filed, or before a notice of lis pendens has been filed, the third party is not bound by the subsequent judgment or decree entered in the action unless it is made a party to the action.” (See id; Roberts v. Friedell (1944) 218 Minn. 88, 15 N.W.2d 496.)

Legal Precedents and Case Law on a Motion Discharge Lis Pendens

It is well settled that “the doctrine of lis pendens is usually applied to favor the interests of the parties asserting its protection.” (See Sartain v. Fidelity Financial Services (1989) 116 Idaho 269, 273.)

It is also well settled that “a lis pendens does not create a lien. It gives notice of a pending lawsuit to subsequent purchasers or incumbrancers of real property.” (See Benz v. D.L. Evans Bank (2012) 268 P.3d 1167, 1175.)