TITLE
60 RCW LIENS
CHAPTER
60.04 RCW MECHANICS’ AND MATERIALMEN’S
LIENS
60.04.011
Definitions
60.04.021 Lien Authorized
60.04.031 Notices-Exceptions
60.04.035 Acts of Coercion-Application of Chapter
19.86 RCW
60.04.041 Contractor Registration
60.04.051 Property Subject to Lien
60.04.061 Priority of Lien
60.04.071 Release of Lien Rights
60.04.081 Frivolous Claim-Procedure
60.04.091 Recording-Time-Contents of Lien
60.04.101 Separate Residential Units-Time for
Filing
60.04.111 Recording-Fees
60.04.121 Lien-Assignment
60.04.131 Claims-Designation of Amount Due
60.04.141 Lien-Duration-Procedural Limitations
60.04.151 Rights of Owner-Recovery Options
60.04.161 bond In Lieu of Claim
60.04.171 Foreclosure-Parties
60.04.181 Rank of Lien-Application of Proceeds-Attorneys’
Fees
60.04.190 Destruction or Concealment of Property-Removal
from Premises-Penalty
60.04.191 Effect of Note-Personal Action Preserved
60.04.201 Material Exempt from Process-Exception
60.04.211 Lien-Effect on Community Interest
60.04.221 Notice to Lender-Withholding of Funds
60.04.226 Financial Encumbrances-Priorities
60.04.230 Construction Projects-Notice to be
Posted by Prime Contractor-Penalty
60.04.250 Informational Materials on Construction
Lien Laws-Master Documents
60.04.255 Informational Materials on Construction
Lien Laws-Copies-Liability
60.04.261 Availability of Information
60.04.900 Liberal Construction-1991 c 281
60.04.901 Captions Not Law-1991 c 281
60.04.902 Effective Date, Application-1991 c
281
60.04.903 Effective Date-1992 c 126
60.04.904 Application of Chapter 281, Laws of
1991, To Actions Pending as of June 1, 1992-1993
c 357
REVISED CODE OF WASHINGTON
TITLE 60 RCW LIENS
CHAPTER 60.04 RCW MECHANICS’ AND MATERIALMEN’S
LIENS
RCW 60.04.011 Definitions
Unless the context requires otherwise, the definitions
in this section apply throughout this chapter.
(1) “Construction agent” means any
registered or licensed contractor, registered
or licensed subcontractor, architect, engineer,
or other person having charge of any improvement
to real property, who shall be deemed the agent
of the owner for the limited purpose of establishing
the lien created by this chapter.
(2) “Contract price” means the amount
agreed upon by the contracting parties, or if
no amount is agreed upon, then the customary
and reasonable charge therefore.
(3) “Draws” means periodic disbursements
of interim or construction financing by a lender.
(4) “Furnishing labor, professional services,
materials, or equipment” means the performance
of any labor or professional services, the contribution
owed to any employee benefit plan on account
of any labor, the provision of any supplies
or materials, and the renting, leasing, or otherwise
supplying of equipment for the improvement of
real property.
(5) “Improvement” means: (a) Constructing,
altering, repairing, remodeling, demolishing,
clearing, grading, or filling in, of, to, or
upon any real property or street or road in
front of or adjoining the same; (b) planting
of trees, vines, shrubs, plants, hedges, or
lawns, or providing other landscaping materials
on any real property; and (c) providing professional
services upon real property or in preparation
for or in conjunction with the intended activities
in (a) or (b) of this subsection.
(6) “Interim or construction financing”
means that portion of money secured by a mortgage,
deed of trust, or other encumbrance to finance
improvement of, or to real property, but does
not include:
(a) Funds to acquire real property;
(b) Funds to pay interest, insurance premiums,
lease deposits, taxes, assessments, or prior
encumbrances;
(c) Funds to pay loan, commitment, title, legal,
closing, recording, or appraisal fees;
(d) Funds to pay other customary fees, which
pursuant to agreement with the owner or borrower
are to be paid by the lender from time to time;
(e) Funds to acquire personal property for which
the potential lien claimant may not claim a
lien pursuant to this chapter.
(7) “Labor” means exertion of the
powers of body or mind performed at the site
for compensation. “Labor” includes
amounts due and owed to any employee benefit
plan on account of such labor performed.
(8) “Mortgagee” means a person who
has a valid mortgage of record or deed of trust
of record securing a loan.
(9) “Owner-occupied” means a single-family
residence occupied by the owner as his or her
principal residence.
(10) “Payment bond” means a surety
bond issued by a surety licensed to issue surety
bonds in the state of Washington that confers
upon potential claimants the rights of third
party beneficiaries.
(11) “Potential lien claimant” means
any person or entity entitled to assert lien
rights under this chapter who has otherwise
complied with the provisions of this chapter
and is registered or licensed if required to
be licensed or registered by the provisions
of the laws of the state of Washington.
(12) “Prime contractor” includes
all contractors, general contractors, and specialty
contractors, as defined by chapter 18.27 or
19.28 RCW, or who are otherwise required to
be registered or licensed by law, who contract
directly with a property owner or their common
law agent to assume primary responsibility for
the creation of an improvement to real property,
and includes property owners or their common
law agents who are contractors, general contractors,
or specialty contractors as defined in chapter
18.27 or 19.28 RCW, or who are otherwise required
to be registered or licensed by law, who offer
to sell their property without occupying or
using the structures, projects, developments,
or improvements for more than one year.
(13) “Professional services” means
surveying, establishing or marking the boundaries
of, preparing maps, plans, or specifications
for, or inspecting, testing, or otherwise performing
any other architectural or engineering services
for the improvement of real property.
(14) “Real property lender” means
a bank, savings bank, savings and loan association,
credit union, mortgage company, or other corporation,
association, partnership, trust, or individual
that makes loans secured by real property located
in the state of Washington.
(15) “Site” means the real property
which is or is to be improved.
(16) “Subcontractor” means a general
contractor or specialty contractor as defined
by chapter 18.27 or 19.28 RCW, or who is otherwise
required to be registered or licensed by law,
who contracts for the improvement of real property
with someone other than the owner of the property
or their common law agent.
RCW 60.04.021 Lien Authorized
Except as provided in RCW 60.04.031, any person
furnishing labor, professional services, materials,
or equipment for the improvement of real property
shall have a lien upon the improvement for the
contract price of labor, professional services,
materials, or equipment furnished at the instance
of the owner, or the agent or construction agent
of the owner.
RCW 60.04.031 Notices-Exceptions
(1) Except as otherwise provided in this section,
every person furnishing professional services,
materials, or equipment for the improvement
of real property shall give the owner or reputed
owner notice in writing of the right to claim
a lien. If the prime contractor is in compliance
with the requirements of RCW 19.27.095, 60.04.230,
and 60.04.261, this notice shall also be given
to the prime contractor as described in this
subsection unless the potential lien claimant
has contracted directly with the prime contractor.
The notice may be given at any time but only
protects the right to claim a lien for professional
services, materials, or equipment supplied after
the date which is sixty days before:
(a) Mailing the notice by certified or registered
mail to the owner or reputed owner; or
(b) Delivering or serving the notice personally
upon the owner or reputed owner and obtaining
evidence of delivery in the form of a receipt
or other acknowledgement signed by the owner
or reputed owner or an affidavit of service.
In the case of new construction of a single-family
residence, the notice of a right to claim a
lien may be given at any time but only protects
the right to claim a lien for professional services,
materials, or equipment supplied after a date
which is ten days before the notice is given
as described in this subsection.
(2) Notices of a right to claim a lien shall
not be required of:
(a) Persons who contract directly with the owner
or the owner’s common law agent;
(b) Laborers whose claim of lien is based solely
on performing labor; or
(c) Subcontractors who contract for the improvement
of real property directly with the prime contractor,
except as provided in subsection (3)(b) of this
section.
(3) Persons who furnish professional services,
materials, or equipment in connection with the
repair, alteration, or remodel of an existing
owner-occupied single-family residence or appurtenant
garage:
(a) Who contract directly with the owner-occupier
or their common law agent shall not be required
to send a written notice of the right to claim
a lien and shall have a lien for the full amount
due under their contract, as provided in RCW
60.04.021; or
(b) Who do not contract directly with the owner-occupier
or their common law agent shall give notice
of the right to claim a lien to the owner-occupier.
Liens of persons furnishing professional services,
materials, or equipment who do not contract
directly with the owner-occupier or their common
law agent may only be satisfied from amounts
not yet paid to the prime contractor by the
owner at the time the notice described in this
section is received, regardless of whether amounts
not yet paid to the prime contractor are due.
For the purposes of this subsection “received”
means actual receipt of notice by personal service,
or registered or certified mail, or three days
after mailing by registered or certified mail,
excluding Saturdays, Sundays, or legal holidays.
(4) The notice of right to claim a lien described
in subsection (1) of this section, shall include
but not be limited to the following information
and shall substantially be in the following
form, using lower-case and upper-case ten-point
type where appropriate.
NOTICE TO OWNER
IMPORTANT: READ BOTH SIDES OF THIS NOTICE CAREFULLY.
PROTECT YOURSELF FROM PAYING TWICE
To:
___________ Date: _________________
Re:
(description of property: Street address or
general location.)
From:
________________________________
AT
THE REQUEST OF: (Name of person ordering the
professional services, materials, or equipment)
THIS
IS NOT A LIEN: This notice is sent to you to
tell you who is providing professional services,
materials, or equipment for the improvement
of your property and to advise you of the rights
of these persons and your responsibilities.
Also take note that laborers on your project
may claim a lien without sending you a notice.
OWNER/OCCUPIER OF EXISTING RESIDENTIAL PROPERTY
Under Washington law, those who furnish labor,
professional services, materials, or equipment
for the repair, remodel, or alteration of your
owner-occupied principal residence and who are
not paid, have a right to enforce their claim
for payment against your property. This claim
is known as a construction lien.The law limits
the amount that a lien claimant can claim against
your property. Claims may only be made against
that portion of the contract price you have
not yet paid to your prime contractor as of
the time this notice was given to you or three
days after this notice was mailed to you. Review
the back of this notice for more information
and ways to avoid lien claims.
COMMERCIAL AND/OR NEW RESIDENTIAL PROPERTY
We have or will be providing professional services,
materials, or equipment for the improvement
of your commercial or new residential project.
In the event you or your contractor fail to
pay us, we may file a lien against your property.
A lien may be claimed for all professional services,
materials, or equipment furnished after a date
that is sixty days before this notice was given
to you or mailed to you, unless the improvement
to your property is the construction of a new
single-family residence, then ten days before
this notice was given to you or mailed to you.
Sender: _________________________
Address: ________________________
Telephone: _______________________
Brief description of professional services,
materials, or equipment provided or to be provided:
________________
IMPORTANT INFORMATION ON REVERSE SIDE
IMPORTANT INFORMATION FOR YOUR PROTECTION
This notice is sent to inform you that we have
or will provide professional services, materials,
or equipment for the improvement of your property.
We expect to be paid by the person who ordered
our services, but if we are not paid, we have
the right to enforce our claim by filing a construction
lien against your property.LEARN more about
the lien laws and the meaning of this notice
by discussing them with your contractor, suppliers,
Department of Labor and Industries, the firm
sending you this notice, your lender, or your
attorney.
COMMON METHODS TO AVOID CONSTRUCTION LIENS:
There are several methods available to protect
your property from construction liens. The following
are two of the more commonly used methods.
DUAL PAYCHECKS (Joint Checks): When paying your
contractor for services or materials, you may
make checks payable jointly to the contractor
and the firms furnishing you this notice.
LIEN RELEASES: You may require your contractor
to provide lien releases signed by all the suppliers
and subcontractors from whom you have received
this notice. If they cannot obtain lien releases
because you have not paid them, you may use
the dual payee check method to protect yourself.
YOU SHOULD TAKE APPROPRIATE STEPS TO PROTECT
YOUR PROPERTY FROM LIENS. YOUR PRIME CONTRACTOR
AND YOUR CONSTRUCTION LENDER ARE REQUIRED BY
LAW TO GIVE YOU WRITTEN INFORMATION ABOUT LIEN
CLAIMS. IF YOU HAVE NOT RECEIVED IT, ASK THEM
FOR IT.
*
* * * * * * * * * * * *
(5)
Every potential lien claimant providing professional
services where no improvement as defined in
RCW 60.04.011(5) (a) or (b) has been commenced,
and the professional services provided are not
visible from an inspection of the real property
may record in the real property records of the
county where the property is located a notice
which shall contain the professional service
provider’s name, address, telephone number,
legal description of the property, the owner
or reputed owner’s name, and the general
nature of the professional services provided.
If such notice is not recorded, the lien claimed
shall be subordinate to the interest of any
subsequent mortgagee and invalid as to the interest
of any subsequent purchaser if the mortgagee
or purchaser acts in good faith and for a valuable
consideration acquires an interest in the property
prior to the commencement of an improvement
as defined in RCW 60.04.011(5) (a) or (b) without
notice of the professional services being provided.
The notice described in this subsection shall
be substantially in the following form:
NOTICE
OF FURNISHING PROFESSIONAL SERVICES
That
on the (day) day of (month and year) , (name
of provider) began providing professional services
upon or for the improvement of real property
legally described as follows:
[Legal
Description is mandatory]
The
general nature of the professional services
provided is______________________________The
owner or reputed owner of the real property
is____________________________________
__________________(Signature)
__________________(Name of Claimant)
__________________(Street Address)
__________________(City, State, Zip Code)
__________________(Phone Number)
(6) A lien authorized by this chapter shall
not be enforced unless the lien claimant has
complied with the applicable provisions of this
section.
RCW
60.04.035 Acts of Coercion-Application of Chapter
19.86 RCW
The legislature finds that acts of coercion
or attempted coercion, including threats to
withhold future contracts, made by a contractor
or developer to discourage a contractor, subcontractor,
or material or equipment supplier from giving
an owner the notice of right to claim a lien
required by RCW 60.04.031, or from filing a
claim of lien under this chapter are matters
vitally affecting the public interest for the
purpose of applying the consumer protection
act, chapter 19.86 RCW. These acts of coercion
are not reasonable in relation to the development
and preservation of business. These acts of
coercion shall constitute an unfair or deceptive
act or practice in trade or commerce for the
purpose of applying the consumer protection
act, chapter 19.86 RCW.
RCW 60.04.041 Contractor
Registration
A contractor or subcontractor required to be
registered under chapter 18.27 RCW or licensed
under chapter 19.28 RCW, or otherwise required
to be registered or licensed by law, shall be
deemed the construction agent of the owner for
the purposes of establishing the lien created
by this chapter only if so registered or licensed.
Persons dealing with contractors or subcontractors
may rely, for the purposes of this section,
upon a certificate of registration issued pursuant
to chapter 18.27 RCW or license issued pursuant
to chapter 19.28 RCW, or other certificate or
license issued pursuant to law, covering the
period when the labor, professional services,
material, or equipment shall be furnished, and
the lien rights shall not be lost by suspension
or revocation of registration or license without
their knowledge. No lien rights described in
this chapter shall be lost or denied by virtue
of the absence, suspension, or revocation of
such registration or license with respect to
any contractor or subcontractor not in immediate
contractual privity with the lien claimant.
RCW 60.04.051 Property
Subject to Lien
The lot, tract, or parcel of land which is improved
is subject to a lien to the extent of the interest
of the owner at whose instance, directly or
through a common law or construction agent the
labor, professional services, equipment, or
materials were furnished, as the court deems
appropriate for satisfaction of the lien. If,
for any reason, the title or interest in the
land upon which the improvement is situated
cannot be subjected to the lien, the court in
order to satisfy the lien may order the sale
and removal of the improvement from the land
which is subject to the lien.
RCW 60.04.061 Priority
of Lien
The claim of lien created by this chapter upon
any lot or parcel of land shall be prior to
any lien, mortgage, deed of trust, or other
encumbrance which attached to the land after
or was unrecorded at the time of commencement
of labor or professional services or first delivery
of materials or equipment by the lien claimant.
RCW 60.04.071 Release
of Lien Rights
Upon payment and acceptance of the amount due
to the lien claimant and upon demand of the
owner or the person making payment, the lien
claimant shall immediately prepare and execute
a release of all lien rights for which payment
has been made, and deliver the release to the
person making payment. In any suit to compel
deliverance of the release thereafter in which
the court determines the delay was unjustified,
the court shall, in addition to ordering the
deliverance of the release, award the costs
of the action including reasonable attorneys’
fees and any damages.
RCW 60.04.081 Frivolous
Claim-Procedure
(1) Any owner of real property subject to a
recorded claim of lien under this chapter, or
contractor, subcontractor, lender, or lien claimant
who believes the claim of lien to be frivolous
and made without reasonable cause, or clearly
excessive may apply by motion to the superior
court for the county where the property, or
some part thereof is located, for an order directing
the lien claimant to appear before the court
at a time no earlier than six nor later than
fifteen days following the date of service of
the application and order on the lien claimant,
and show cause, if any he or she has, why the
relief requested should not be granted. The
motion shall state the grounds upon which relief
is asked, and shall be supported by the affidavit
of the applicant or his or her attorney setting
forth a concise statement of the facts upon
which the motion is based.
(2) The order shall clearly state that if the
lien claimant fails to appear at the time and
place noted the lien shall be released, with
prejudice, and that the lien claimant shall
be ordered to pay the costs requested by the
applicant including reasonable attorneys’
fees.(3) If no action to foreclose the lien
claim has been filed, the clerk of the court
shall assign a cause number to the application
and obtain from the applicant a filing fee of
thirty-five dollars. If an action has been filed
to foreclose the lien claim, the application
shall be made a part of that action.
(4) If, following a hearing on the matter, the
court determines that the lien is frivolous
and made without reasonable cause, or clearly
excessive, the court shall issue an order releasing
the lien if frivolous and made without reasonable
cause, or reducing the lien if clearly excessive,
and awarding costs and reasonable attorneys’
fees to the applicant to be paid by the lien
claimant. If the court determines that the lien
is not frivolous and was made with reasonable
cause, and is not clearly excessive, the court
shall issue an order so stating and awarding
costs and reasonable attorneys’ fees to
the lien claimant to be paid by the applicant.
(5) Proceedings under this section shall not
affect other rights and remedies available to
the parties under this chapter or otherwise.
RCW 60.04.091 Recording-Time-Contents
of Lien
Every person claiming a lien under RCW 60.04.021
shall file for recording, in the county where
the subject property is located, a notice of
claim of lien not later than ninety days after
the person has ceased to furnish labor, professional
services, materials, or equipment or the last
date on which employee benefit contributions
were due. The notice of claim of lien:
(1) Shall state in substance and effect:
(a) The name, phone number, and address of the
claimant;
(b) The first and last date on which the labor,
professional services, materials, or equipment
was furnished or employee benefit contributions
were due;
(c) The name of the person indebted to the claimant;
(d) The street address, legal description, or
other description reasonably calculated to identify,
for a person
familiar with the area, the location of the
real property to be charged with the lien;
(e) The name of the owner or reputed owner of
the property, if known, and, if not known, that
fact shall be stated; and
(f)
The principal amount for which the lien is claimed.
(2)
Shall be signed by the claimant or some person
authorized to act on his or her behalf who shall
affirmatively state they have read the notice
of claim of lien and believe the notice of claim
of lien to be true and correct under penalty
of perjury, and shall be acknowledged pursuant
to chapter 64.08 RCW. If the lien has been assigned,
the name of the assignee shall be stated. Where
an action to foreclose the lien has been commenced
such notice of claim of lien may be amended
as pleadings may be by order of the court insofar
as the interests of third parties are not adversely
affected by such amendment. A claim of lien
substantially in the following form shall be
sufficient:
CLAIM
OF LIEN
___________________,
claimant, vs _______________________, name of
person indebted to claimant:
Notice is hereby given that the person named
below claims a lien pursuant to *chapter 64.04
RCW. In support of this lien the following information
is submitted:
1. NAME OF LIEN CLAIMANT: ____________________________
TELEPHONE NUMBER: __________________________________
ADDRESS: _____________________________________________
2. DATE ON WHICH THE CLAIMANT BEGAN TO PERFORM
LABOR, PROVIDE PROFESSIONAL SERVICES, SUPPLY
MATERIAL OR EQUIPMENT OR THE DATE ON WHICH EMPLOYEE
BENEFIT CONTRIBUTIONS BECAME DUE: ______________________________
3. NAME OF PERSON INDEBTED TO THE CLAIMANT:
____________________________________________
4. DESCRIPTION OF THE PROPERTY AGAINST WHICH
A LIEN IS CLAIMED (Street address, legal description
or other information that will reasonably describe
the property): ____________________________________________________________________________________________________
5. NAME OF THE OWNER OR REPUTED OWNER (If not
known state “unknown”): _________________________
6. THE LAST DATE ON WHICH LABOR WAS PERFORMED;
PROFESSIONAL SERVICES WERE FURNISHED; CONTRIBUTIONS
TO AN
EMPLOYEE BENEFIT PLAN WERE DUE; OR MATERIAL,
OR EQUIPMENT WAS FURNISHED: _______________________________________________
________________________________________________________________
7. PRINCIPAL AMOUNT FOR WHICH THE LIEN IS CLAIMED
IS: _______________________________
8. IF THE CLAIMANT IS THE ASSIGNEE OF THIS CLAIM
SO STATE HERE: ____________________________________________________
__________________________________________________________________
__________________________, Claimant
__________________________
__________________________
(Phone number, address, city, and state of claimant)
STATE OF WASHINGTON, COUNTY OF______________________,
ss. ______________________, being sworn, says:
I am the claimant (or attorney of the claimant,
or administrator, representative, or agent of
the trustees of an employee benefit plan) above
named; I have read or heard the foregoing claim,
read and know the contents thereof, and believe
the same to be true and correct and that the
claim of lien is not frivolous and is made with
reasonable cause, and is not clearly excessive
under penalty of perjury ________________
Subscribed and sworn to before me this _____
day of ________________________.
The period provided for recording the claim
of lien is a period of limitation and no action
to foreclose a lien shall be maintained unless
the claim of lien is filed for recording within
the ninety-day period stated. The lien claimant
shall give a copy of the claim of lien to the
owner or reputed owner by mailing it by certified
or registered mail or by personal service within
fourteen days of the time the claim of lien
is filed for recording. Failure to do so results
in a forfeiture of any right the claimant may
have to attorneys’ fees and costs against
the owner under RCW 60.04.181.
[NOTES: Reviser’s note: The reference
to chapter 64.04 RCW appears to be erroneous.
Reference to chapter 60.04 RCW was apparently
intended.]
RCW 60.04.101 Separate
Residential Units-Time for Filing
When furnishing labor, professional
services, materials, or equipment for the construction
of two or more separate residential units, the
time for filing claims of lien against each
separate residential unit shall commence to
run upon the cessation of the furnishing of
labor, professional services, materials, or
equipment on each residential unit, as provided
in this chapter. For the purposes of this section
a separate residential unit is defined as consisting
of one residential structure together with any
garages or other outbuildings appurtenant thereto.
RCW
60.04.111 Recording-Fees
The county auditor shall record the notice of
claim of lien in the same manner as deeds and
other instruments of title are recorded under
chapter 65.08 RCW. Notices of claim of lien
for registered land need not be recorded in
the Torrens register. The county auditor shall
charge no higher fee for recording notices of
claim of lien than other documents.
RCW
60.04.121 Lien-Assignment
Any lien or right of lien created by this chapter
and the right of action to recover therefore,
shall be assignable so as to vest in the assignee
all rights and remedies of the assignor, subject
to all defenses thereto that might be made.
RCW 60.04.131 Claims-Designation
of Amount Due
In every case in which the notice of claim of
lien is recorded against two or more separate
pieces of property owned by the same person
or owned by two or more persons jointly or otherwise,
who contracted for the labor, professional services,
material, or equipment for which the notice
of claim of lien is recorded, the person recording
the notice of claim of lien shall designate
in the notice of claim of lien the amount due
on each piece of property, otherwise the lien
is subordinated to other liens that may be established
under this chapter. The lien of such claim does
not extend beyond the amount designated as against
other creditors having liens upon any of such
pieces of property.
RCW 60.04.141 Lien-Duration-Procedural
Limitations
No lien created by this chapter binds the property
subject to the lien for a longer period than
eight calendar months after the claim of lien
has been recorded unless an action is filed
by the lien claimant within that time in the
superior court in the county where the subject
property is located to enforce the lien, and
service is made upon the owner of the subject
property within ninety days of the date of filing
the action; or, if credit is given and the terms
thereof are stated in the claim of lien, then
eight calendar months after the expiration of
such credit; and in case the action is not prosecuted
to judgment within two years after the commencement
thereof, the court, in its discretion, may dismiss
the action for want of prosecution, and the
dismissal of the action or a judgment rendered
thereon that no lien exists shall constitute
a cancellation of the lien. This is a period
of limitation, which shall be tolled by the
filing of any petition seeking protection under
Title Eleven, United States Code by an owner
of any property subject to the lien established
by this chapter.
RCW 60.04.151 Rights
of Owner-Recovery Options
The lien claimant shall be entitled to recover
upon the claim recorded the contract price after
deducting all claims of other lien claimants
to whom the claimant is liable, for furnishing
labor, professional services, materials, or
equipment; and in all cases where a claim of
lien shall be recorded under this chapter for
labor, professional services, materials, or
equipment supplied to any lien claimant, he
or she shall defend any action brought thereupon
at his or her own expense. During the pendency
of the action, the owner may withhold from the
prime contractor the amount of money for which
a claim is recorded by any subcontractor, supplier,
or laborer. In case of judgment against the
owner or the owner’s property, upon the
lien, the owner shall be entitled to deduct
from sums due to the prime contractor the principal
amount of the judgment from any amount due or
to become due from the owner to the prime contractor
plus such costs, including interest and attorneys’
fees, as the court deems just and equitable,
and the owner shall be entitled to recover back
from the prime contractor the amount for which
a lien or liens are established in excess of
any sum that may remain due from the owner to
the prime contractor.
RCW 60.04.161 Bond in
Lieu of Claim
Any owner of real property subject to a recorded
claim of lien under this chapter, or contractor,
subcontractor, lender, or lien claimant who
disputes the correctness or validity of the
claim of lien may record, either before or after
the commencement of an action to enforce the
lien, in the office of the county recorder or
auditor in the county where the claim of lien
was recorded, a bond issued by a surety company
authorized to issue surety bonds in the state.
The surety shall be listed in the latest federal
department of the treasury list of surety companies
acceptable on federal bonds, published in the
Federal Register, as authorized to issue bonds
on United States government projects with an
underwriting limitation, including applicable
reinsurance, equal to or greater than the amount
of the bond to be recorded. The bond shall contain
a description of the claim of lien and real
property involved, and be in an amount equal
to the greater of five thousand dollars or two
times the amount of the lien claimed if it is
ten thousand dollars or less, and in an amount
equal to or greater than one and one-half times
the amount of the lien if it is in excess of
ten thousand dollars. If the claim of lien affects
more than one parcel of real property and is
segregated to each parcel, the bond may be segregated
the same as in the claim of lien. A separate
bond shall be required for each claim of lien
made by separate claimants. However, a single
bond may be used to guarantee payment of amounts
claimed by more than one claim of lien by a
single claimant so long as the amount of the
bond meets the requirements of this section as applied to the aggregate sum of all claims
by such claimant. The condition of the bond
shall be to guarantee payment of any judgment
upon the lien in favor of the lien claimant
entered in any action to recover the amount
claimed in a claim of lien, or on the claim
asserted in the claim of lien. The effect of
recording a bond shall be to release the real
property described in the notice of claim of
lien from the lien and any action brought to
recover the amount claimed. Unless otherwise
prohibited by law, if no action is commenced
to recover on a lien within the time specified
in RCW 60.04.141, the surety shall be discharged
from liability under the bond. If an action is timely commenced, then on payment of any
judgment entered in the action or on payment
of the full amount of the bond to the holder
of the judgment, whichever is less, the surety
shall be discharged from liability under the
bond.
Nothing in this section shall in any way prohibit
or limit the use of other methods, devised by
the affected parties to secure the obligation
underlying a claim of lien and to obtain a release
of real property from a claim of lien.
RCW 60.04.171 Foreclosure-Parties
The lien provided by this chapter, for which
claims of lien have been recorded, may be foreclosed
and enforced by a civil action in the court
having jurisdiction in the manner prescribed
for the judicial foreclosure of a mortgage.
The court shall have the power to order the
sale of the property. In any action brought
to foreclose a lien, the owner shall be joined
as a party. The interest in the real property
of any person who, prior to the commencement
of the action, has a recorded interest in the
property, or any part thereof, shall not be
foreclosed or affected unless they are joined
as a party.
A person shall not begin an action to foreclose
a lien upon any property while a prior action
begun to foreclose another lien on the same
property is pending, but if not made a party
plaintiff or defendant to the prior action,
he or she may apply to the court to be joined
as a party thereto, and his or her lien may
be foreclosed in the same action. The filing
of such application shall toll the running of
the period of limitation established by RCW
60.04.141 until disposition of the application
or other time set by the court. The court shall
grant the application for joinder unless to
do so would create an undue delay or cause hardship
which cannot be cured by the imposition of costs
or other conditions as the court deems just.
If a lien foreclosure action is filed during
the pendency of another such action, the court
may, on its own motion or the motion of any
party, consolidate actions upon such terms and
conditions as the court deems just, unless to
do so would create an undue delay or cause hardship
which cannot be cured by the imposition of costs
or other conditions. If consolidation of actions
is not permissible under this section, the lien
foreclosure action filed during the pendency
of another such action shall not be dismissed
if the filing was the result of mistake, inadvertence,
surprise, excusable neglect, or irregularity.
An action to foreclose a lien shall not be dismissed
at the instance of a plaintiff therein to the
prejudice of another party to the suit who claims
a lien.
RCW
60.04.181 Rank of Lien-Application of Proceeds-Attorneys’
Fees
(1) In every case in which different construction
liens are claimed against the same property,
the court shall declare the rank of such lien
or class of liens, which liens shall be in the
following order:
(a) Liens for the performance of labor;
(b) Liens for contributions owed to employee
benefit plans;
(c) Liens for furnishing material, supplies,
or equipment;
(d) Liens for subcontractors, including but
not limited to their labor and materials; and
(e) Liens for prime contractors, or for professional
services.
(2) The proceeds of the sale of property must
be applied to each lien or class of liens in
order of its rank and, in an action brought
to foreclose a lien, pro rata among each claimant
in each separate priority class. A personal
judgment may be rendered against any party personally
liable for any debt for which the lien is claimed.
If the lien is established, the judgment shall
provide for the enforcement thereof upon the
property liable as in the case of foreclosure
of judgment liens. The amount realized by such
enforcement of the lien shall be credited upon
the proper personal judgment. The deficiency,
if any, remaining unsatisfied, shall stand as
a personal judgment, and may be collected by
execution against any party liable therefore.
(3) The court may allow the prevailing party
in the action, whether plaintiff or defendant,
as part of the costs of the action, the moneys
paid for recording the claim of lien, costs
of title report, bond costs, and attorneys’
fees and necessary expenses incurred by the
attorney in the superior court, court of appeals,
supreme court, or arbitration, as the court
or arbitrator deems reasonable. Such costs shall
have the priority of the class of lien to which
they are related, as established by subsection
(1) of this section.
(4) Real property against which a lien under
this chapter is enforced may be ordered sold
by the court and the proceeds deposited into
the registry of the clerk of the court, pending
further determination respecting distribution
of the proceeds of the sale.
RCW 60.04.190 Destruction or Concealment of
Property-Removal From Premises-Penalty
See RCW 61.12.030, 9.45.060.
RCW 60.04.191 Effect
of Note-Personal Action Preserved
The taking of a promissory note or other evidence
of indebtedness for any labor, professional
services, material, or equipment furnished for
which a lien is created by this chapter does
not discharge the lien therefore, unless expressly
received as payment and so specified therein.
Nothing in this chapter shall be construed to
impair or affect the right of any person to
whom any debt may be due for the furnishing
of labor, professional services, material, or
equipment to maintain a personal action to recover
the debt against any person liable therefore.
RCW 60.04.201 Material
Exempt from Process-Exception
Whenever material is furnished for use in the
improvement of property subject to a lien created
by this chapter, the material is not subject
to attachment, execution, or other legal process
to enforce any debt due by the purchaser of
the material, except a debt due for the purchase
money thereof, so long as in good faith, the
material is about to be applied in the improvement
of such property.
RCW
60.04.211 Lien-Effect on Community Interest
The claim of lien, when filed as required by
this chapter, shall be notice to the husband
or wife of the person who appears of record
to be the owner of the property sought to be
charged with the lien, and shall subject all
the community interest of both husband and wife
to the lien.
RCW
60.04.221 Notice to Lender-Withholding of Funds
Any lender providing interim or construction
financing where there is not a payment bond
of at least fifty percent of the amount of construction
financing shall observe the following procedures
and the rights and liabilities of the lender
and potential lien claimant shall be affected
as follows:
(1) Any potential lien claimant who has not
received a payment within five days after the
date required by their contract, invoice, employee
benefit plan agreement, or purchase order may
within thirty-five days of the date required
for payment of the contract, invoice, employee
benefit plan agreement, or purchase order, give
a notice as provided in subsections (2) and
(3) of this section of the sums due and to become
due, for which a potential lien claimant may
claim a lien under this chapter.
(2) The notice shall be signed by the potential
lien claimant or some person authorized to act
on his or her behalf.
(3) The notice shall be given in writing to
the lender at the office administering the interim
or construction financing, with a copy given
to the owner and appropriate prime contractor.
The notice shall be given by:
(a) Mailing the notice by certified or registered
mail to the lender, owner, and appropriate prime
contractor; or
(b) Delivering or serving the notice personally
and obtaining evidence of delivery in the form
of a receipt or other acknowledgment signed
by the lender, owner, and appropriate prime
contractor, or an affidavit of service.
(4) The notice shall state in substance and
effect as follows:
(a) The person, firm, trustee, or corporation
filing the notice is entitled to receive contributions
to any type of employee benefit plan or has
furnished labor, professional services, materials,
or equipment for which a lien is given by this
chapter. (b) The name of the prime contractor,
common law agent, or construction agent ordering
the same.
(c) A common or street address of the real property
being improved or the legal description of the
real property.
(d) The name, business address, and telephone
number of the lien claimant.
The notice to the lender may contain additional
information but shall be in substantially the
following form:
NOTICE TO REAL PROPERTY LENDER
(Authorized by RCW _____)
TO: ___________________________(Name of Lender)
________________________________(Administrative
Office-Street Address)
____________________________________(City) (State)
(Zip)
AND TO: ___________________________(Owner)
AND TO: ___________________________(Prime Contractor-If
Different Than Owner)
______________________________________(Name
of Laborer, Professional,Materials, or Equipment
Supplier) whose business address is_______,
did at the property located at __________________________________________________
(Check appropriate box) ( ) perform labor (
) furnish professional services ( ) provide
materials ( ) supply equipment as follows:
__________________________________________________
which was ordered by _______________________(Name
of Person)
whose address was stated to be _________________________________________________________________
The amount owing to the undersigned according
to contract or purchase order for labor, supplies,
or equipment (as above mentioned) is the sum
of _______ Dollars ($______). Said sums became
due and owing as of_________________________.(State
Date)_____________, __________________
You are hereby required to withhold from any
future draws on existing construction financing
which has beenmade on the subject property (to
the extent there remain undisbursed funds) the
sum of ___________ Dollars($_________ ).
IMPORTANT
Failure to comply with the requirements of this
notice may subject the lender to a whole or
partial compromise of any priority lien interest
it may have pursuant to RCW 60.04.226.
DATE: _______________
By: __________________
Its: __________________
(5) After the receipt of the notice, the lender
shall withhold from the next and subsequent
draws the amount claimed to be due as stated
in the notice. Alternatively, the lender may
obtain from the prime contractor or borrower
a payment bond for the benefit of the potential
lien claimant in an amount sufficient to cover
the amount stated in the potential lien claimant’s
notice. The lender shall be obligated to withhold
amounts only to the extent that sufficient interim
or construction financing funds remain undisbursed
as of the date the lender receives the notice.
(6) Sums so withheld shall not be disbursed
by the lender, except by the written agreement
of the potential lien claimant, owner, and prime
contractor in such form as may be prescribed
by the lender, or the order of a court of competent
jurisdiction.
(7) In the event a lender fails to abide by
the provisions of *subsections (4) and (5) of
this section, then the mortgage, deed of trust,
or other encumbrance securing the lender shall
be subordinated to the lien of the potential
lien claimant to the extent of the interim or
construction financing wrongfully disbursed,
but in no event more than the amount stated
in the notice plus costs as fixed by the court,
including reasonable attorneys’ fees.
(8) Any potential lien claimant shall be liable
for any loss, cost, or expense, including reasonable
attorneys’ fees and statutory costs, to
a party injured thereby arising out of any unjust,
excessive, or premature notice filed under purported
authority of this section. “Notice”
as used in this subsection does not include
notice given by a potential lien claimant of
the right to claim liens under this chapter
where no actual claim is made.
(9)(a) Any owner of real property subject to
a notice to real property lender under this
section, or the contractor, subcontractor, lender,
or lien claimant who believes the claim that
underlies the notice is frivolous and made without
reasonable cause, or is clearly excessive may
apply by motion to the superior court for the
county where the property, or some part thereof
is located, for an order commanding the potential
lien claimant who issued the notice to the real
property lender to appear before the court at
a time no earlier than six nor later than fifteen
days from the date of service of the application
and order on the potential lien claimant, and
show cause, if any he or she has, why the notice
to real property lender should not be declared
void. The motion shall state the grounds upon
which relief is asked and shall be supported
by the affidavit of the applicant or his or
her attorney setting forth a concise statement
of the facts upon which the motion is based.
(b) The order shall clearly state that if the
potential lien claimant fails to appear at the
time and place noted, the notice to lender shall
be declared void and that the potential lien
claimant issuing the notice shall be ordered
to pay the costs requested by the applicant
including reasonable attorneys’ fees.
(c) The clerk of the court shall assign a cause
number to the application and obtain from the
applicant a filing fee of thirty-five dollars.
(d) If, following a hearing on the matter, the
court determines that the claim upon which the
notice to real property lender is based is frivolous
and made without reasonable cause, or clearly
excessive, the court shall issue an order declaring
the notice to real property lender void if frivolous
and made without reasonable cause, or reducing
the amount stated in the notice if clearly excessive,
and awarding costs and reasonable attorneys’
fees to the applicant to be paid by the person
who issued the notice. If the court determines
that the claim underlying the notice to real
property lender is not frivolous and was made
with reasonable cause, and is not clearly excessive,
the court shall issue an order so stating and
awarding costs and reasonable attorneys’
fees to the issuer of the notice to be paid
by the applicant.
(e) Proceedings under this subsection shall
not affect other rights and remedies available
to the parties under this chapter or otherwise.
[NOTES: Reviser’s note: The reference
to subsections (4) and (5) of this section appears
to be erroneous. Engrossed Senate Bill No. 6441
changed the subsection numbers. Subsections
(4) and (5) are now subsections (5) and (6).]
RCW
60.04.226 Financial Encumbrances-Priorities
Except as otherwise provided in RCW 60.04.061
or 60.04.221, any mortgage or deed of trust
shall be prior to all liens, mortgages, deeds
of trust, and other encumbrances which have
not been recorded prior to the recording of
the mortgage or deed of trust to the extent
of all sums secured by the mortgage or deed
of trust regardless of when the same are disbursed
or whether the disbursements are obligatory.
RCW
60.04.230 Construction Projects-Notice to be
Posted by Prime Contractor-Penalty
(1) For any construction project costing more
than five thousand dollars the prime contractor
shall post in plain view for the duration of
the construction project a legible notice at
the construction job site containing the following:
(a) The legal description, or the tax parcel
number assigned pursuant to RCW 84.40.160, and
the street address if available, and may include
any other identification of the construction
site by the prime contractor;
(b) The property owner’s name, address,
and phone number;
(c) The prime contractor’s business name,
address, phone number, current state contractor
registration number and identification; and
(d) Either:
(i) The name, address, and phone number of the
office of the lender administering the interim
construction financing, if any; or
(ii) The name and address of the firm that has
issued a payment bond, if any, on behalf of
the prime contractor for the protection of the
owner if the bond is for an amount not less
than fifty percent of the total amount of the
construction project.
(2) For any construction project which requires
a building permit under local ordinance, compliance
with the posting requirements of RCW 19.27.095
shall constitute compliance with this section.
Otherwise, the information shall be posted as
set forth in this section.
(3) Failure to comply with this section shall
subject the prime contractor to a civil penalty
of not more than five thousand dollars, payable
to the county where the project is located.
RCW 60.04.250 Informational
Materials on Construction Lien Laws-Master Documents
The department of labor and industries shall
prepare master documents that provide informational
material about construction lien laws and available
safeguards against real property lien claims.
The material shall include methods of protection
against lien claims, including obtaining lien
release documents, performance bonds, joint
payee checks, the opportunity to require contractor
disclosure of all potential lien claimants as
a condition of payment, and lender supervision
under *RCW 60.04.200 and 60.04.210. The material
shall also include sources of further information,
including the department of labor and industries
and the office of the attorney general.
[NOTES: Reviser’s note: RCW 60.04.200
and 60.04.210 were repealed by 1991 c 281 §
31, effective April 1, 1992.]
RCW 60.04.255 Informational
Materials on Construction Lien Laws-Copies-Liability
(1) Every real property lender shall provide
a copy of the informational material described
in RCW 60.04.250 to all persons obtaining loans,
the proceeds of which are to be used for residential
construction or residential repair or remodeling.
(2) Every contractor shall provide a copy of
the informational material described in RCW
60.04.250 to customers required to receive contractor
disclosure notice under RCW 18.27.114.
(3) No cause of action may lie against the state,
a real property lender, or a contractor arising
from the provisions of RCW 60.04.250 and this
section.
(4) For the purpose of this section, “real
property lender” means a bank, savings
bank, savings and loan association, credit union,
mortgage company, or other corporation, association,
partnership, or individual that makes loans
secured by real property in this state.
RCW
60.04.261 Availability of Information
The prime contractor shall immediately supply
the information listed in RCW 19.27.095(2) to
any person who has contracted to supply materials,
equipment, or professional services or who is
a subcontractor on the improvement, as soon
as the identity and mailing address of such
subcontractor, supplier, or professional is
made known to the prime contractor either directly
or through another subcontractor, supplier,
or professional.
RCW 60.04.900 Liberal
Construction-1991 c 281
RCW 19.27.095, 60.04.230, and 60.04.011 through
60.04.226 and 60.04.261 are to be liberally
construed to provide security for all parties
intended to be protected by their provisions.
RCW 60.04.901 Captions Not Law-1991 c 281
Section headings as used in this chapter do
not constitute any part of the law.
RCW 60.04.902 Effective Date, Application-1991
c 281
This act shall take effect June 1, 1992. Lien
claims based on an improvement commenced by
a potential lien claimant on or after June 1,
1992, shall be governed by the provisions of
this act.
RCW 60.04.903 Effective
Date-1992 c 126
This act is necessary for the immediate preservation
of the public peace, health, or safety, or support
of the state government and its existing public
institutions, and shall take effect June 1,
1992, except section 14 of this act which shall
take effect immediately [March 31, 1992].
RCW
60.04.904 Application of Chapter 281, Laws of
1991, To Actions Pending as of June 1, 1992-1993
c 357
All
rights acquired and liabilities incurred under
acts or parts of act repealed by chapter 281,
Laws of 1991, are hereby preserved, and all
actions pending as of June 1, 1992, shall proceed
under the law as it existed at the time chapter
281, Laws of 1991, took effect.
[NOTES:
Retroactive application-1993 c 357: “This
act is remedial in nature and shall be applied
retroactively to June 1, 1992.”
Effective
date-1993 c 357: “This act is necessary
for the immediate preservation of the public
peace, health, or safety, or support of the
state government and its existing public institutions,
and shall take effect immediately [May 15, 1993].”] |
