PART IV.  NOTICE OF PENDENCY OF ACTION

     §634-51  Recording of notice of pendency of action.  (a)  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; any state or county agency, board, or commission imposing an administrative enforcement action; 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 encumbrancer 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 part II of chapter 501 shall govern.

     (b)  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.

     (c)  As used in this section, "action" includes an administrative enforcement action by any state or county agency, board, or commission against a landowner for a land use violation or a currently unauthorized structure encroaching on public lands, including but not limited to submerged lands or lands within the shoreline, that falls, slides, or comes onto public land, or arises from or benefits an adjoining or abutting private land. [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; am L 2013, c 119, §9; am L 2023, c 236, §3]

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, no. 2, at 77 (1980).

Case Notes

  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 (1976).

  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 (2006).

   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 (2007).

  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 (1991).

  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 (1994).

  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 (1994).

  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 (1999).

  Where mortgagors' rights to property extinguished through foreclosure, that issue is res judicata.  4 H. App. 439, 667 P.2d 834 (1983).

  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 (2008).

  Where developer did not seek to directly obtain title to, or possession of, property, but rather sought to avoid the transfer of the property owner's and lessee's interest in the property for the purpose of securing payment of money which might potentially be owed if developer succeeded on its counterclaims, the developer's claim under chapter 651C, the Hawaii Uniform Fraudulent Transfer Act, was asserted for a purpose which was rejected as a basis for a lis pendens under this section; thus, circuit court did not abuse its discretion in granting county's motion to expunge developer's lis pendens.  128 H. 378 (App.), 289 P.3d 1014 (2012).