CO Code § 38-35-110 (2021)
2021 Colorado Code|Title 38 - Property - Real and Personal|Article 35 - Conveyancing and Recording|Part 1 - General Provisions|§ 38-35-110. Lis Pendens as Notice - Issuance of Certificate - Expiration

  After filing any pleading in an action in any court of record of this state or in any district court of the United States within this state wherein relief is claimed affecting the title to real property, any party to such action may record in the office of the county clerk and recorder in the county or counties in which the real property or any portion thereof is situated a notice of lis pendens containing the name of the court where such action is pending, the names of the parties to such action at the time of such recording, and a legal description of the real property. The failure to name a party or describe a portion of the real property in such notice shall not affect the sufficiency of such notice, or the sufficiency of an extension of such notice pursuant to the provisions of subsection (4) of this section, as to the interest of the parties named in such notice or in such extension in the real property described therein. From the time of recording, such notice of lis pendens shall be notice to any person thereafter acquiring, by, through, or under any party named in such notice, an interest in the real property described in the notice in the county or counties where recorded that the interest so acquired may be affected by the action described in the notice.      Unless a timely notice of appeal is filed while a notice of lis pendens is in effect or unless the notice of lis pendens has expired and ceased to be notice as provided in subsection (6) of this section, except as provided in sections 38-22-132 and 38-22.5-111, a recorded notice of lis pendens shall remain in effect until the earliest of the following:   The action is dismissed without an order of the court;    Forty-nine days following the entry of an appealable order determining that certain real property specifically described in such order, or a specifically described interest therein, will not be affected by a judgment on the issues then pending, but the notice of lis pendens shall remain in effect as to all other real property described in such notice; or    Forty-nine days following the entry of final judgment in the trial court as to all parties and as to some or all of the real property described in the notice of lis pendens, or a specifically described interest therein, but the notice of lis pendens shall remain in effect as to all other property described in such notice.       For the purposes of subparagraphs (II) and (III) of paragraph (a) of this subsection (2), the forty-nine-day period shall commence on the first day allowed for the filing of an appeal.    If a timely notice of appeal is filed while a notice of lis pendens is in effect or if the notice of lis pendens is filed after an appeal is filed, such notice of lis pendens shall remain in effect until the earliest of the following:   The notice of lis pendens expires and ceases to be notice as provided in subsection (6) of this section;    The court having jurisdiction over the action enters an order determining that the notice of lis pendens is no longer in effect;    Thirty-five days following the issuance of a mandate by the appellate court; except that, if the mandate issued by the appellate court remands the case to a lower court for further proceedings, the notice of lis pendens shall remain in effect subject to the provisions of paragraph (a) of this subsection (2).            Upon request by any person, the clerk of the trial court shall issue a certificate stating whether, as of a specified date, a judgment was entered in the action described in such certificate and the date of such judgment or, if the action was dismissed, the date of such dismissal and whether such dismissal was by court order, by notice, or by stipulation. In either case, the certificate shall also state either that, as of a specified date, posttrial motions have not been filed or that posttrial motions have been filed, identifying such motions and the action, if any, taken on such motions and the date of such action. The certificate shall also state that either there is or is not an advisory copy of a notice of appeal of the action filed with the trial court.    Upon request by any person, the clerk of the appellate court shall issue a certificate stating, as of a specified date, either that appellate proceedings respecting the action described in such certificate have not been commenced or that such proceedings have been commenced and stating the date of such commencement. If appellate proceedings have been commenced, the certificate shall also state either that a formal mandate has or has not been issued and, if not issued, that either a judgment, an opinion of the court, and directions as to costs have not been issued or have been issued and the dates thereof.    Upon being recorded with the county clerk and recorder of the county or counties wherein the real property or any portion thereof is situated, any such certificate issued by the clerk of the trial court or the clerk of the appellate court shall constitute prima facie evidence of the facts therein stated.       Except as provided in subsection (6) of this section, a recorded notice of lis pendens which has not ceased to be in effect as provided in subsection (2) of this section shall expire and cease to be notice to any person for any purpose six years after the date of its recording, unless an extension of the notice of lis pendens is recorded prior to its expiration. A timely recorded extension showing the information required in subsection (1) of this section, showing that such is an extension of an original notice of lis pendens, and showing the recording date of the original notice of lis pendens shall extend the effect of the original notice for six years after the date of recording the extension or to such earlier date as such notice ceases to be in effect as provided in subsection (2) of this section.    A new notice of lis pendens meeting all the requirements of subsection (1) of this section may be recorded at any time while the action is pending and shall be notice to the same extent as provided in subsection (1) of this section; except that such new notice shall be notice only from the time of its recording.    Any notice of lis pendens recorded prior to March 20, 1992, which does not cease to be in effect as provided in subsection (2) of this section and which is not extended as provided in subsection (4) of this section shall expire and cease to be notice to any person for any purpose six years after the date of its recording or two years after March 20, 1992, whichever is later.     History. Source: L. 27: P. 590, § 9. CSA: C. 40, § 115. CRS 53: § 118-6-10. C.R.S. 1963: § 118-6-10. L. 92: Entire section amended, p. 2103, § 1, effective March 20. L. 2002: (1) amended, p. 51, § 3, effective March 21. L. 2011: IP(2)(a) amended,(SB 11-264), ch. 279, p. 1251, § 4, effective July 1. L. 2014: (2) amended,(HB 14-1347), ch. 208, p. 770, § 6, effective July 1. History. Source: L. 27: P. 590, § 9. CSA: C. 40, § 115. CRS 53: § 118-6-10. C.R.S. 1963: § 118-6-10. L. 92: Entire section amended, p. 2103, § 1, effective March 20. L. 2002: (1) amended, p. 51, § 3, effective March 21. L. 2011: IP(2)(a) amended,(SB 11-264), ch. 279, p. 1251, § 4, effective July 1. L. 2014: (2) amended,(HB 14-1347), ch. 208, p. 770, § 6, effective July 1.    Cross references:    For the filing of a notice of lis pendens, see C.R.C.P. 105(f).    For the legislative declaration in the 2011 act amending the introductory portion to subsection (2)(a), see section 1 of chapter 279, Session Laws of Colorado 2011.     ANNOTATION   Law reviews. For article, “Curative Statutes of Colorado Respecting Titles to Real Estate”, see 26 Dicta 321 (1949).   The intended purpose for filing a notice of lis pendens is to provide notice to anyone who may acquire an interest in the property during the pendency of litigation so that he or she will be bound by its outcome. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367 (Colo. App. 1994) (decided under former C.R.C.P. 105 (f)(1)); Brossia v. Rick Constr., L.T.D., 81 P.3d 1126 (Colo. App. 2003); Ute Mesa Lot 1, LLC v. First-Citizens Bank & Trust Co., 736 F.3d 947 (10th Cir. 2013).   Effect of filing lis pendens. Tinglof v. Askerlund, 96 Colo. 27 , 39 P.2d 1039 (1934).   The effect of a lis pendens rendering title to a property unmarketable is, on its own, not a transfer of an owner's interest in the property. Ute Mesa Lot 1, LLC v. First-Citizens Bank & Trust Co., 736 F.3d 947 (10th Cir. 2013).   Notice of lis pendens did not constitute filing or recording of an equitable lien against the property. Thomas v. Oken, 699 P.2d 7 (Colo. App. 1984); Alien, Inc. v. Futterman, 924 P.2d 1063 (Colo. App. 1995).   Because a lis pendens is merely a notice and does not constitute a lien, no transfer of an interest in property occurs. Ute Mesa Lot 1, LLC v. First-Citizens Bank & Trust Co., 736 F.3d 947 (10th Cir. 2013).   Validity of a notice of lis pendens is determined when it is recorded, and the subsequent filing of an amended complaint that asserts an equitable lien claim cannot relate back to the date of the original complaint and thereby render an invalid notice of lis pendens valid. Brossia v. Rick Constr., L.T.D., 81 P.3d 1126 (Colo. App. 2003).   Lis pendens terminates with dismissal of plaintiff's appeal. A subsequent settlement between the parties did not resurrect the lis pendens and thus was not binding on the interests of a third party which had filed an interest on the property during the pendency of the lis pendens. Perry Park Country Club, Inc. v. Manhattan Sav. Bank, 813 P.2d 841 (Colo. App. 1991).   Notice recorded pursuant to § 38-22-129 does not satisfy the notice requirement of this section. Weize Co., LLC v. Colo. Reg'l Constr., 251 P.3d 489 (Colo. App. 2010).   District court correctly determined that notice of lis pendens was of no effect vis-a-vis defendant holding deed of trust on the property and, therefore, did not impair defendant's right to foreclose on the property. A notice of lis pendens is not notice to a person who acquires an interest in property from someone other than the parties named in the notice. Here, it is undisputed that the deed of trust to the subject property was not given to defendant's assignor by plaintiffs, because defendant's assignor did not acquire its interest in the property “by, through, or under any party named in” the notice of lis pendens. By the express language of subsection (1), therefore, the notice of lis pendens was not notice to defendant of plaintiff's claimed interest in the property. Thomas v. Lynx United Group, LLC, 159 P.3d 789 (Colo. App. 2006).   Notice of lis pendens was ineffective as to defendant's assignor because defendant's assignor did not acquire its interest in the property “by, through, or under any party named in” the notice of lis pendens and because it could not be found in defendant's chain of title and, therefore, failed to provide constructive notice of plaintiff's interest in property. Subsection (1) expressly provides that a notice of lis pendens must be recorded in the office of the county clerk and recorder of the county in which the real property is located. Interests in property that do not appear in the chain of title, as shown by the grantor and grantee indices, do not give notice to purchasers of those interests. Here, notice of lis pendens that failed to list record holder of title to property was outside defendant's chain of title. As a matter of law, therefore, it did not provide constructive notice of plaintiff's claimed interest in the property, notwithstanding that it was filed in the office of the county clerk and recorder. Accordingly, defendant properly permitted to foreclose on the deed of trust. Thomas v. Lynx United Group, LLC, 159 P.3d 789 (Colo. App. 2006).   Filing motion to amend or supplement complaint to add a count relating to property purchased with allegedly fraudulently transferred funds immediately prior to recording lis pendens, was filing of pleading under this section. Emarine v. Haley, 892 P.2d 343 (Colo. App. 1994) (decided under former C.R.C.P. 105 (f)(1)).   Although this section does not expressly authorize the filing of a notice of lis pendens in a federal action, its plain language includes the filing of a notice of an action in any court. Alien, Inc. v. Futterman, 924 P.2d 1063 (Colo. App. 1995).   A party to an out-of-state action affecting title to real property in Colorado is entitled to file a notice of lis pendens. Kerns v. Kerns, 53 P.3d 1157 (Colo. 2002).   Trial court had no authority to release notice of lis pendens while plaintiffs' claims remained pending in federal court. Alien, Inc. v. Futterman, 924 P.2d 1063 (Colo. App. 1995).   An equitable action to impose a constructive trust on real property located within the state of Colorado entitles the party bringing the action to file a notice of lis pendens against that property in accordance with this section. Kerns v. Kerns, 53 P.3d 1157 (Colo. 2002).   The phrase “[t]he court having jurisdiction over the action” in subsection (2)(c)(II) does not mean the judge presiding over the underlying probate matter. Pierce v. Francis, 194 P.3d 505 (Colo. App. 2008).   Applied in Hammersley v. District Court, 199 Colo. 442 , 610 P.2d 94 (1980); In re Harms, 7 B.R. 398 (Bankr. D. Colo. 1980 ); In re Tarletz, 27 B.R. 787 (Bankr. D. Colo. 1983 ).