Hammersley v. District Court In and For Routt County, 79SA568

• Decision Date: 21 April 1980
• Docket Number: No. 79SA568,79SA568
• Citation: 199 Colo. 442,610 P.2d 94
• Parties: Richard E. HAMMERSLEY and Karin Hammersley, Petitioners, v. DISTRICT COURT IN AND FOR the COUNTY OF ROUTT and John J. Wilkinson, a Judgeassigned to said Court, Respondents.
• Court: Colorado Supreme Court

Page 94

610 P.2d 94

199 Colo. 442

Richard E. HAMMERSLEY and Karin Hammersley, Petitioners, v. DISTRICT COURT IN AND FOR the COUNTY OF ROUTT and John J Wilkinson, a Judgeassigned to said Court, Respondents.

No. 79SA568.

Supreme Court of Colorado, En Banc.

April 21, 1980.

Ratcliffe & Chamberlain, Dean Link, Steamboat Springs, for petitioners.

Sharp & Black, Richard T. Casson, Mattlage, Maus & Lettunich, Anthony B. Lettunich, Steamboat Springs, for respondents.

LOHR, Justice.

In this original proceeding we issued a rule to show cause why an order of the Routt County District Court releasing a notice of lis pendens should not be vacated. We now make that rule absolute.

Petitioners are owners of a lot in a subdivision in Steamboat Springs. O'Donnell is the owner of an adjacent lot in that subdivision. The entire subdivision is subject to protective covenants recorded in the Routt County real estate records. The covenants impose certain criteria with respect to improvements to be constructed; create an architectural control committee to determine adherence to such criteria; and authorize any owner of property in the subdivision to institute proceedings to enforce the covenants.

Petitioners brought an action against O'Donnell and others, claiming that the residence being constructed by O'Donnell violates the covenants and will detrimentally affect the view from the residence on petitioners' lot. The relief sought included an injunction against further construction by O'Donnell until his improvement plans are approved in accordance with the protective covenants.

Petitioners' application for preliminary injunction was denied. They appealed from that denial, and that matter is pending before the court of appeals.

Petitioners filed a notice of lis pendens in the office of the county clerk and recorder shortly after denial of the preliminary injunction. O'Donnell moved to release that notice. That motion was granted, and this original proceeding followed.

The question presented is whether a notice of lis pendens is authorized to be filed pursuant to C.R.C.P. 105(f) with respect to a suit of the type brought by petitioners. We conclude that it is.

C.R.C.P. 105(f) provides in pertinent part:

"After filing any pleading wherein affirmative relief is claimed affecting the title to real property, a party may file in the office of the recorder of the county in which the property is situated a notice of lis pendens containing the names of the parties, the nature of the claim, and a description of the property in that county affected thereby; such notice shall from the time of filing for record thereof, and only from such time, be constructive notice to all persons acquiring any interest in or lien upon the property described in such notice from any grantor or from any source whatsoever."

The trial court held that a proceeding to enforce adherence to criteria with respect to construction of improvements is not one "wherein affirmative relief is claimed affecting the title to real property " (emphasis added) within the meaning of C.R.C.P. 105(f). We disagree.

In absence of statute or court rule, under the doctrine of lis pendens a purchaser of real property which is the subject of pending litigation takes title subject to any adverse interests ultimately adjudicated in such litigation. Cheever v. Minton, 12 Colo. 557, 21 P. 710 (1889). The relationship between the common law doctrine of lis pendens and statutes or court rules with respect to notice of lis pendens is explained in Empire Land and Canal Co. v. Engley, 18 Colo. 388, 391, 33 P. 153, 154 (1893), as follows:

"The distinction between the term 'lis pendens' and the phrase 'notice of lis pendens' is not always observed. The former is a common law term; the latter is regulated by statute. At common law the general rule is that all persons are bound to take notice, at their peril, of suits affecting the title to property; and purchasers pendente lite, either with or without notice, take no better title than their grantor shall be adjudged to have. The hardship of this rule in cases of certain equitable liens and secret trust estates had led to the adoption of statutes providing for the registry or recording of notice of the pendency of certain actions."

The operation of the doctrine of lis pendens and the policy underlying that doctrine have been described as follows:

"Under the common law, nothing relating to the subject matter of the suit could be changed while it was pending and one acquiring an interest in the property involved therein from a party thereto took such interest subject to the parties' rights as finally determined and was conclusively bound by the result of the litigation, provided the court had jurisdiction of the subject matter and the person from whom the interest was acquired.

" . . . The doctrine of lis pendens is founded upon the consideration that no suit could be successfully terminated if, during its pendency, the property could...