In all actions in the district court of this state or in the United States district court for the district of New Mexico affecting the title to real estate in this state, the plaintiff, at the time of filing his petition or complaint, or at any time thereafter before judgment or decree, may record with the county clerk of each county in which the property may be situate a notice of the pendency of the suit containing the names of the parties thereto, the object of the action and the description of the property so affected and concerned, and, if the action is to foreclose a mortgage, the notice shall contain, in addition, the date of the mortgage, the parties thereto and the time and place of recording, and must be recorded five days before judgment, and the pendency of such action shall be only from the time of recording the notice, and shall be constructive notice to a purchaser or encumbrancer of the property concerned; and any person whose conveyance is subsequently recorded shall be considered a subsequent purchaser or encumbrancer and shall be bound by all the proceedings taken after the recording of the notice to the same extent as if he were made a party to the said action.
The lis pendens notice need not be acknowledged to entitle it to be recorded.
History: Laws 1873-1874, ch. 19, § 1; C.L. 1884, § 1853; C.L. 1897, § 2902; Code 1915, § 4261; C.S. 1929, § 105-1101; 1941 Comp., § 19-309; 1953 Comp., § 21-3-14; Laws 1959, ch. 160, § 1; 1965, ch. 95, § 1.
Party filing notice of lis pendens need not have an interest in the property. — Where a party has standing to file a lawsuit in district court affecting the title to real property, Section 38-1-14 NMSA 1978 allows for the filing of a notice of lis pendens in connection with the lawsuit. Filing a notice of lis pendens is not limited to those cases in which the adverse party claims a beneficial interest in the title to the property. High Mesa Gen. P'ship v. Patterson, 2010-NMCA-072, 148 N.M. 863, 242 P.3d 430, cert. quashed, 2011-NMCERT-002, 150 N.M. 617, 264 P.3d 129.
Party filing lis pendens must have a present claim to the property. — To be eligible to record a lis pendens notice on a piece of real property, the party recording the notice must assert a present claim to the property's title or have some other present interest in the property. United States v. Jarvis, 499 F.3d 1196 (10th Cir. 2007).
Subdivision affects title to property. — The subdivision of property and the approval of a subdivision plat affect the title to the property being subdivided. High Mesa Gen. P'ship v. Patterson, 2010-NMCA-072, 148 N.M. 863, 242 P.3d 430, cert. quashed, 2011-NMCERT-002, 150 N.M. 617, 264 P.3d 129.
Notice of lis pendens filed by a party who did not have an interest in the property. — Where the county approved plaintiff's application for a preliminary subdivision plat of plaintiff's property; defendant filed an administrative appeal of the county's decision pursuant to Rule 1-074 NMRA and a notice of lis pendens; and defendant had no interest in the property, the notice of lis pendens was properly filed, and defendant did not have an obligation to obtain a stay under Rule 1-074 NMRA prior to filing the notice of lis pendens. High Mesa Gen. P'ship v. Patterson, 2010-NMCA-072, 148 N.M. 863, 242 P.3d 430, cert. quashed, 2011-NMCERT-002, 150 N.M. 617, 264 P.3d 129.
Effect of voluntary release of notice of lis pendens. — Where a party chooses not to exercise the right to give notice to subsequent purchasers through a notice of lis pendens, either by not recording a notice during litigation or by releasing the notice prior to the conclusion of the litigation, further purchasers are deemed to be without constructive notice of the pending claims involving the property. Kokoricha v. Estate of Donald I. Keiner, 2010-NMCA-053, 148 N.M. 322, 236 P.3d 41.
Effect of voluntary release of notice of lis pendens. — Where plaintiffs purchased property that was the subject of ongoing probate litigation in which the decedent's estate sought to set aside a deed from the decedent to the decedent's nephew; the estate did not file a notice of lis pendens when the litigation was commenced; after two years of litigation, the estate filed a notice of lis pendens; prior to the conclusion of the litigation, the estate voluntarily released the lis pendens; and plaintiffs purchased the property after the lis pendens had been released, but prior to the conclusion of the litigation, there was no active notice on record providing plaintiffs with constructive notice of the pending probate litigation involving title to the property. Kokoricha v. Estate of Donald I. Keiner, 2010-NMCA-053, 148 N.M. 322, 236 P.3d 41.
Rights relate to date of filing notice. — If judgment is in favor of the one filing the lis pendens notice, the rights of that party relate back to the date of the notice. Title Guar. & Ins. Co. v. Campbell, 1987-NMCA-107, 106 N.M. 272, 742 P.2d 8.
Duration of lis pendens. — A lis pendens continues until expiration of the time to appeal or until final disposition of the case by the appellate court. Salas v. Bolagh, 1987-NMCA-138, 106 N.M. 613, 747 P.2d 259.
Where purchaser of real estate withheld his deed from registration and recordation until after suit was filed to cancel the conveyance to his vendor for fraud and notice of lis pendens is filed, the purchaser was a subsequent purchaser and charged with notice of the fact that his grantor's title was attacked in the suit. Wilson v. Robinson, 1916-NMSC-010, 21 N.M. 422, 155 P. 732.
Vendor's implied lien was properly held paramount to the mortgage lien of an intervener where vendor had filed (now recorded) notice of lis pendens in county clerk's office in July, 1942, without actual knowledge of the intervener's claim to an equitable lien dating back to Jan., 1942, intervener's mortgage not having been executed until Oct., 1942, and filed for record in Dec., 1942. Logan v. Emro Chem. Corp., 1944-NMSC-044, 48 N.M. 368, 151 P.2d 329.
Notice held ineffective. — Contractor filed suit to enforce lien on apparatus, equipment and plants of mining company and to recover balance due under contract. On same day that suit was filed, he endeavored to file (now record) a notice of the pendency of such suit under this section. About ten months later, on the mining company being adjudicated bankrupt, the contractor's claim was allowed against the estate of the bankrupt mining company, but his lien was denied on the ground that since his suit in the state court did not affect title to real estate, the lis pendens was not properly filed (now recorded) and did not constitute constructive notice to trustee in bankruptcy of the alleged lien. Sweeney v. Medler, 78 F.2d 148 (10th Cir. 1935).
Filing in anticipation of money judgment is prohibited. — The filing of a notice of lis pendens in anticipation of a money judgment is prohibited. Hill v. Department of Air Force, 884 F.2d 1321 (10th Cir. 1989).
Filing of lis pendens cannot support slander of title action. — The filing of a lis pendens is absolutely privileged and cannot support an action for slander of title. Superior Constr., Inc. v. Linnerooth, 1986-NMSC-008, 103 N.M. 716, 712 P.2d 1378.
Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Lis Pendens §§ 11, 23.
Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306.
Lis pendens; protection during time allowed for appeal, writ of error, or motion for new trial, 10 A.L.R. 415.
Sufficiency of notice or knowledge of pendency of action against covenantee or his privy in order to bind the covenantor by judgment, 34 A.L.R. 1429.
Title of stranger to litigation who purchased at judicial sale before appeal or pending appeal without supersedeas as affected by reversal of decree directing sale, 155 A.L.R. 1252.
Will contest, necessity of filing notice of lis pendens in, 159 A.L.R. 386.
Original notice of lis pendens as defective upon renewal of litigation within permissive period after dismissal, reversal or nonsuit, 164 A.L.R. 515.
Duration of operation of lis pendens as ground upon diligent prosecution of suit, 8 A.L.R.2d 986.
New or successive notice of lis pendens in same or new action after loss or cancellation of original notice, 52 A.L.R.2d 1308.
Lis pendens in suit to compel stock transfer, 48 A.L.R.4th 731.
Lis pendens as applicable to suit for separation or dissolution of marriage, 65 A.L.R.4th 522.
54 C.J.S. Lis Pendens §§ 18, 35.
Structure New Mexico Statutes
Section 38-1-1 - Rules of pleading, practice and procedure.
Section 38-1-2 - [Practice statutes may be modified or suspended by rules.]
Section 38-1-3 - [Common law is rule of practice and decision.]
Section 38-1-4 - [Equity rules prevail over common law.]
Section 38-1-5 - Service of process; failure to report.
Section 38-1-6 - Process against foreign corporations.
Section 38-1-6.1 - Process against foreign limited liability companies.
Section 38-1-7 - Purpose of act.
Section 38-1-8 - Service of process upon unauthorized insurer.
Section 38-1-9 - Defense of action by unauthorized insurer.
Section 38-1-10 - Attorney fees.
Section 38-1-11 - Short title.
Section 38-1-12 - Service against incapacitated.
Section 38-1-13 - [Notice of proceedings occurring prior to service of summons or appearance.]
Section 38-1-14 - Notice of lis pendens; contents; recording; effect.
Section 38-1-16 - Personal service of process outside state.