The Pending Real Estate Litigation Customary in Arizona
By: adam howard
Submitted: 2010-08-16 01:47:01 | Word Count: 568
When filing a lawsuit for specific performance for the sale of a home or other real property contract, patrons typically use 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 places any other buyer on notice that the title to the property is involved in land litigation. Moreover, a pendens prevents any alternative buyer from acquiring any interest in the property superior to that of the original buyer. Additionally, as a practical matter, as a result of title insurance corporations can not insure title to a property against which a pendens is recorded, a property with a lis pendens can not be sold.
Once a lis is recorded, the primary question a seller generally asks is "How soon will I take away the lis against my property therefore that I will sell it to a different buyer?" When informing the seller that pursuant to A.R.S. ? thirty three-420(B) the seller is entitled to a prompt hearing on the validity of the pendens, the second query asked by the vendor is "What must be proved at this hearing to invalidate the 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" normal for invalidating a pendens before resolution of the particular performance lawsuit (which might last years). In alternative words, the seller seeking to invalidate the lis carries the burden of proof to determine that the claim upon which the lis pendens is predicated is "groundless" (i.e., frivolous or totally without benefit). This "groundless" commonplace promulgated by the Court of Appeals in Evergreen West establishes very cheap doable threshold for invalidating a lis pendens previous to resolution of the particular performance lawsuit.
In 1992 our neighboring jurisdiction of California established a a lot of harder commonplace which better protects sellers. California's customary needs the trial court to form a threshold inquiry into whether or not "the claimant has... established by a preponderance of the proof the probable validity of the real property claim." Cal. Civ. Proc. Code ? 405.32 (stress added). In different words, unless the buyer will most likely prevail at trial, the lis pendens will be dominated invalid and the seller will be immediately entitled to sell the real property while the lawsuit proceeds to resolution.
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In conclusion, requiring an inquiry into the customer's underlying facts and legal position, to determine whether the buyer's claim for lis pendens has a minimum of a "probable" chance of succeeding at trial, is a superb rule. A lis pendens ought to not be used as a weapon by buyers to hold 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 long run and establish a higher commonplace, requiring a buyer to prove the probable validity of a lis pendens at the start of the litigation.
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