Lis Pendens Issues In Arizona Real Estate – Part 2

Most debates about when a lis pendens is appropriate center around whether the underlying lawsuit truly “affects title” to real property as is required by A.R.S. § 12-1191. Some Arizona Courts have interpreted this statutory language broadly, meaning any lawsuit to determine rights “incident” to title will permit recording of a lis pendens. Other Arizona Courts have interpreted the term “affects title” more narrowly. For instance, a recent decision determined that a Homeowner’s Association (HOA) exceeded its rights to file a notice of lis pendens when seeking injunctive relief against a homeowner for violation of the HOA’s governing documents. See Santa Fe Ridge Homeowners’ Association v. Bartschi, 219 Ariz. 291, 199 P.3d 646 (App. 2008). In that case the Arizona Court of Appeals case held that, where the HOA was not seeking to expand, restrict or burden the rights of a homeowner, but merely enforcing the existing CC&R’s (codes, covenants and restrictions), the filing of a notice of lis pendens was not proper.