Challenging (or Defending) a Lis Pendens in Utah

A lis pendens is a short recorded document with an outsized effect. Once it is on title, buyers walk, lenders will not close, and the property is frozen until the case ends. That is the point: it warns the world that a lawsuit may change who owns the land.

It is also easy to misuse. A plaintiff who wants leverage in a money dispute can record one against whatever the defendant owns. So the question for any owner whose property has been tagged is simple. Does the lawsuit actually affect this property? If not, Utah law gives you a fast way to clear it, and sometimes damages.

1. What a lis pendens may do, and what it may not

A notice of pendency of action is proper for an action that affects title to, or the right of possession of, real property (Utah Code § 78B-6-1303(1); Meritage Cos. v. Gross). A case must already be filed and pending in a Utah or federal district court before the notice is recorded. The notice itself must state the case caption, the object of the action or defense, and a specific legal description of only the property affected (§ 78B-6-1303(2)).

The line that matters most: the claim must reach the property itself. A complaint that seeks only money damages does not support a lis pendens (Busch v. Doyle). Neither does a notice tied to a case that is no longer pending. In Winters v. Schulman, the notice was invalid because the underlying case had ended years earlier and the judgment never addressed title to or possession of the Utah property.

2. The motion to release

Section 78B-6-1304 is the owner’s tool. Any party to the action, or anyone with an interest in the affected property, may move the court where the case is pending to release the notice. The court must order it released if, after notice and any hearing the court finds necessary, the claimant has not established by a preponderance of the evidence the validity of the real property claim that is the subject of the notice.

Read that allocation carefully. The burden sits with the party who recorded the notice. Before the 2016 amendments, Utah courts described the inquiry as limited to the face of the complaint, without reaching the merits (Winters; Eldridge v. Farnsworth). Those cases still frame the threshold question, whether the pleaded claim is one that affects title or possession at all. But the statute now speaks in terms of proof, and a claimant who answers a release motion with nothing but the complaint is taking a risk.

3. Claims that do affect title

The other side of the ledger matters just as much. Many claims that look like money claims are not. Equitable claims that seek to recover specific property, or to compel its conveyance, support a lis pendens. A claimant defending the notice should identify the claim and the remedy that reach the land.

Unjust enrichment and constructive trust. A constructive trust is available where there is a wrongful act, unjust enrichment, and specific property traceable to the wrongful conduct (Goggin v. Goggin). In the Rawlings v. Rawlings litigation, the Utah Supreme Court addressed a constructive trust imposed on properties subject to a lis pendens, and explained that where a claim arises only from improvements to land, the remedy is an equitable lien rather than a constructive trust. Either one is an interest in the property itself.

Undue influence and rescission. A claim to set aside a conveyance procured by undue influence goes to title directly. Where a confidential relationship exists, a transaction that benefits the trusted party is presumed unfair (Ellsworth v. Huffstatler).

Specific performance. Real estate is presumed unique, so specific performance is the presumed remedy for breach of an agreement to transfer it (Knighton v. Bowers). An oral promise to convey land is not necessarily defeated by the statute of frauds. Equity can enforce it where there was an agreement, part or full performance, and reliance on it (Orton v. Carter; Jenkins v. Percival).

The notice does not need to list every cause of action. The statute requires the object of the action, not an inventory of claims (§ 78B-6-1303(2)).

4. Damages for a wrongful notice

Since 2016, Utah has given owners a direct damages remedy. Under Utah Code § 78B-6-1304.5, a person who records or causes to be recorded a notice of pendency is liable to the record owner for $10,000 or treble actual damages, whichever is greater, plus reasonable attorney fees and costs, if the person knew or had reason to know that:

• • no qualifying legal action against the property had been filed;
• • the notice was groundless; or
• • the notice did not comply with the content requirements of § 78B-6-1303(2),

among the other grounds the statute lists. The knowledge standard matters. A claimant with a colorable real property claim is in a very different position from one who recorded a notice to pressure a money dispute.

Fees also follow the release motion itself. Section 78B-6-1304 provides for an award of fees and costs on the motion, subject to exceptions where an award would be unjust. The rule cuts both ways: in Peterson v. Pierce, a party that defended a properly filed lis pendens against a motion to remove it recovered the fees it incurred doing so.

5. Why slander of title is usually the wrong tool

Owners often want to sue for slander of title. In Utah, that claim usually fails. In Hansen v. Kohler, the Utah Supreme Court treated a recorded lis pendens as a republication of the pleadings and held it protected by the absolute judicial proceedings privilege. The statute is the remedy the Legislature built for this problem. Use it.

6. For the claimant: defending the notice

If you recorded the notice, assume a release motion is coming and prepare for it on day one.