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.
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:
8 G. Thompson, Commentaries on the Modern Law of Real Property § 4308, at 331, 334 (repl. J. Grimes 1963).
C.R.C.P. 105(f) does not create the doctrine of lis pendens; it merely modifies or restricts the common law on that subject. See Shuck v. Quackenbush, 75 Colo. 592, 227 P. 1041 (1924); Buckhorn Plaster Co. v. Consolidated Plaster Co., 47 Colo. 516, 108 P. 27 (1910).
The common law rule was quite harsh. It bound anyone who acquired an interest in property by the result of pending litigation involving that property even though the interest was acquired without knowledge of the litigation. See 8 J. Casner,American Law of Property § 13.12 (1952). Because of this harshness, some courts limited the types of litigation within the rule to those claims directly operating on title as distinguished from those dealing with use or possession. See 51 Am.Jur.2d,Lis Pendens, §§ 4, 21. Such a limitation is no longer necessary in Colorado because of the court rule that a notice of lis pendens describing the parties and the property must be filed in the office of the county clerk and recorder in order to give constructive notice of the pending action. C.R.C.P. 105(f). The record gives notice to all persons subsequently acquiring any interest in the property. Section 38-35-110, C.R.S.1973. The effect is to condition the operation of lis pendens upon compliance with the filing requirements of the rule.
The policy that successful completion of a suit involving rights in real property should not be thwarted by permitting transfers of interests in real property to persons not bound by the outcome of the suit continues in its full vigor. This policy would be furthered by giving an expansive interpretation to the language "affecting the title to real property" as found in C.R.C.P. 105(f). The instant case involves the extent of limitations on the rights of an owner of a lot in a subdivision to construct a residence on that property. Those rights are incidents of the owner's title. Although the present litigation does not seek to change ownership in any way, it does involve a determination of certain rights incident to ownership and in that sense affects title to real property. It will promote the finality of litigation and economy of judicial resources, will harm no legitimate interest of the owner,
Accordingly, we make the rule to show cause absolute.
ERICKSON, J., does not participate.