PART IV. 
NOTICE OF PENDENCY OF ACTION



 



§634-51  Recording of notice of pendency of
action.  In any action concerning real property or affecting the title or
the right of possession of real property, the plaintiff, at the time of filing
the complaint, and any other party at the time of filing a pleading in which
affirmative relief is claimed, or at any time afterwards, may record in the
bureau of conveyances a notice of the pendency of the action, containing the
names or designations of the parties, as set out in the summons or pleading,
the object of the action or claim for affirmative relief, and a description of
the property affected thereby.  From and after the time of recording the
notice, a person who becomes a purchaser or incumbrancer of the property
affected shall be deemed to have constructive notice of the pendency of the
action and be bound by any judgment entered therein if the person claims
through a party to the action; provided that in the case of registered land,
section 501-151, sections 501-241 to 501-248, and sections 501-261 to 501-269
shall govern.



This section authorizes the recording of a
notice of the pendency of an action in a United States District Court, as well
as a state court. [L 1927, c 73, §1; RL 1935, §4086; RL 1945, §10068; RL 1955,
§230-42; am L 1966, c 33, §4; HRS §634-76; am L 1972, c 89, §2A(p); ren HRS
§634-51; gen ch 1985; am L 1998, c 219, §14; am L 2009, c 120, §14]



 



Law Journals and Reviews



 



  Concerning constitutionality of lis pendens statutes, see
Dealing with the Remorseful Seller:  Time Being of the Essence and Buyer's
Right to Specific Performance in Hawaii Real Estate Transactions.  15 HBJ 77.



 



Case Notes



 



  Action in which plaintiff made fraudulent transfer claims
under the Hawaii Uniform Fraudulent Transfer Act (chapter 651C), seeking to
avoid the transfer of real property to the extent necessary to satisfy
plaintiff's claims and/or to grant plaintiff other relief under §651C-7(a), was
an appropriate subject of a lis pendens under the Hawaii doctrine of lis pendens,
codified in this section.  457 F. Supp. 2d 1121.



Where plaintiffs filed a notice of pendency of action
pursuant to this section and §501-151, magistrate judge's order, in applying
Sports Shinko to the facts of the case to deny defendant's motion to expunge,
was not clearly erroneous or contrary to law.  529 F. Supp. 2d 1206.



  Since filing notice of lis pendens under this section poses
only a potential cloud on title, it is not an unconstitutional seizure of
property without due process.  418 F. Supp. 695.



  Party may not invoke lis pendens where party's interest in
land is only a percentage of the income derived from the use of land and there
is no right to title or control of the land.  72 H. 267, 814 P.2d 396.



  Alleged equitable lien and filing of lis pendens not breach
of covenant against encumbrances since lien was not actually in existence,
valid, and enforceable at time of conveyance; a recorded lis pendens is an
encumbrance.  75 H. 480, 866 P.2d 951.



  Where complainant does not claim title to or a right of
possession of property, section not implicated and lis pendens should have been
expunged.  75 H. 480, 866 P.2d 951.



  Where trial court's judgment in favor of defendant
extinguished any claims plaintiff had against defendant and filing of appeal
did not affect validity of the judgment being appealed from, lis pendens
properly expunged as it was no longer based on "any action concerning real
property".  92 H. 243, 990 P.2d 713.



  Where mortgagors' rights to property extinguished through foreclosure,
that issue is res judicata.  4 H. App. 439, 667 P.2d 834.



  Where appellants filed both of their motions for notice of
pendency of action after the decree of foreclosure, after the order confirming
the foreclosure sale was entered, and after the writ of possession had been
issued by the court in favor of the bank, the sale of the property to a third
party rendered the appeal of the expungement of the lis pendens moot.  117 H.
506 (App.), 184 P.3d 821.



 



Hawaii Legal Reporter Citations



 



  Lis pendens expunged.  78-2 HLR 78-1289; 80-1 HLR 800595.



  Section unconstitutional.  78-2 HLR 78-769; 78-2 HLR 78-1289.