Any party to an action who proceeds to record a notice of pending action pursuant to Section 409 shall not thereby waive any right of arbitration which that person may have pursuant to a written agreement to arbitrate, nor any right to petition the court to compel arbitration pursuant to Section 1281.2, if, in filing an action to record that notice, the party at the same time presents to the court an application that the action be stayed pending the arbitration of any dispute which is claimed to be arbitrable and which is relevant to the action.
§ 1298.5.Recording Notice of Pending Action Not Waiver of Right to Arbitration
Title 9.4. Real Estate Contract Arbitration · Enacted 1988 · no amendments on record · Last verified July 29, 2026
In one sentenceSection 1298.5 lets a party record a notice of pending action without waiving arbitration rights, as long as the same filing asks the court to stay the action pending arbitration of the arbitrable dispute.
Full Text of § 1298.5
Plain-English Summary
Recording a notice of pending action can look like a decision to fight a real estate dispute in court rather than arbitration. This section says it does not have to be read that way.
A party who records that notice keeps the right to arbitrate under a written agreement, and keeps the right to ask the court to compel arbitration, so long as the same action that records the notice also asks the court to stay the case while the arbitrable dispute gets resolved through arbitration. Filing the notice protects the party's interest in the property while the request to stay preserves the arbitration path, instead of forcing a choice between the two.
Frequently Asked Questions
Does recording a notice of pending action give up the right to arbitrate?
No, as long as the party filing the action also asks the court to stay it pending arbitration of the dispute.
What must accompany the notice of pending action to preserve arbitration rights?
An application, presented at the same time, asking the court to stay the action while the arbitrable dispute is arbitrated.
Which section lets a court order arbitration in this situation?
Section 1281.2, the general provision letting a party petition to compel arbitration of an arbitrable controversy.
Amendment History
Added by Stats. 1988, Ch. 881, Sec. 1. Operative July 1, 1989, by Section 1298.8.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 29, 2026.
· Official source
Also known as: lis pendens waiver arbitration real estatenotice of pending action arbitration stay