Payment disputes and delays are fairly common in the construction business. Luckily, the construction industry also allows its stakeholders to seek legal remedy to settle unpaid invoices – you can secure your payment by filing a mechanics lien.
A mechanics lien is a legal right of all qualified construction participants. When you record a mechanics lien, you essentially attach a note to a property that informs its potential buyers of the unsettled invoices related to it. This note deters future buyers, which in effect makes the property difficult to sell, prompting property owners to settle outstanding bills.
While a mechanics lien is highly effective in securing payment from delinquent payments, the process of filing it is not as easy. There are strict rules and regulations that you must follow for your mechanics lien claim to be considered valid by the court.
This guide will walk you through the specific procedures in filing a Washington state, from protecting your lien rights to enforcing the lien before it expires.
- Who Can File a Washington Mechanics Lien?
- Are Pre-lien Notices Required in Washington State?
- How to File a Mechanics Lien in Washington State: 3 Steps
- Important Deadlines to Keep Track of When Filing a Washington Mechanics Lien
- 3 Common Mistakes When Filing a Washington Mechanics Lien
Who Can File a Washington Mechanics Lien?
General contractors, subcontractors, and material suppliers may file a mechanics lien in Washington state. Other construction participants such as architects and designers also have lien rights, as well as lower-tier stakeholders such as sub-subcontractors. Suppliers to suppliers, however, do NOT have the right to file a mechanics lien?
Are Pre-lien Notices Required in Washington State?
Like most states, Washington requires its construction professionals to serve pre-lien notices in order to secure and protect their lien rights. Washington also has specific pre-lien notice requirements depending on a construction professional’s role on the project.
For general contractors
If a construction project costs more than $5,000, the general contractor is required to post on the job site a notice that contains the following information:
a) The legal description of the property and the street address, if available
b) The name, address, and phone number of the property owner
c) The business name, address, phone number of the general contractor
d) The general contractor’s registration number and identification
e) Either i) the name, address, and phone number of the office of the lender, if any, or ii) the name and address of the firm that has issued a payment bond, if any
Posting this notice will require the subcontractors and other lower-tier construction participants to serve the general contractor a Notice of Right to Claim a Lien. Otherwise, all other construction participants only have to give the notice to the property owner(s).
The information in this notice also help the subcontractors and material suppliers, and even the general contractors themselves, fill out their mechanics lien form. Failing to post this notice will result in the general contractor paying not more than $5,000 to the county.
For construction participants not in direct contact with the owner
All subcontractors and material suppliers that have no direct contact with the property owner will be required to serve a Notice of Right to Claim a Lien.
While first-tier subcontractors — those who are in contact with the general contractor — may not be strictly required to serve this notice, it is still highly advisable that they submit this pre-lien notice to the property owner anyway. Serving this notice opens the communication lines among construction stakeholders and informs the property owners of your participation in the project.
What should be on the Washington Notice of Right to Claim a Lien form?
The information that must be in the Washington pre-lien notice include:
- A legal description of the property, the street address, or a general location description
- Name of the party who hired you
- Your name, address, and phone number
- A brief description of the services you are providing to the project
Washington Statute Section 60.04.031(4) requires the notice to be substantially in the following form, using upper and lower cases accordingly and in 10-point font size.
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
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
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: . . . .
ON REVERSE SIDE
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.
When should the Notice of Right to Claim a Lien be served in Washington? To whom should you send it?
The Notice of Right to Claim a Lien may be served anytime, but your mechanics lien will only cover a certain number of days prior to your serving this notice.
For residential projects, the notice will cover all the services you have done from 10 days before you serve the notice. For all other projects, the notice will cover all the services rendered from 60 days before you send the notice.
TIP: It is best practice to serve the Notice of Right to Claim a Lien as early as possible.
The notice must be served to the property owner(s) or reputed owner(s) by registered or certified mail. If the general contractor has posted on the job site the notice that includes all the information required of them, you must also serve the Notice of Right to Claim a Lien to the general contractor
How to File a Mechanics Lien in Washington State: 3 Steps
- Prepare the mechanics lien form
- Record the mechanics lien
- Enforce/release the mechanics lien
Prepare the mechanics lien form
The mechanics lien form in Washington state must have the following information (from RCW 60.04.091(1):
a) The name, phone number, and address of the claimant
This is your own information. Make sure to avoid typographical errors.
b) The first and last dates on which labor was performed or materials were provided
These are the two dates when you first and last performed work on the project
c) The name of the person indebted to the claimant
This is the name of the person who owes you the payment.
d) The street address, legal description, or other description sufficient for identification of the real property to be charged with the lien
This information should be available on the notice that the general contractor has posted on the job site. The general contractor is obligated by law to provide you with this information.
e) The name of the owner or reputed owner of the property
This is the name of the property owner. If the property owner’s name is unknown, you must state such fact on the mechanics lien form.
f) The principal amount for which the lien is claimed
This is the amount that is owed to you. Do NOT include attorney fees and other lien-related costs. You may recover these extra costs once you successfully enforce your lien.
The Washington rules (RCW 60.04.091(2)) recommend the mechanics lien to be in substantially the following form:
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:
- NAME OF LIEN CLAIMANT: . . . .
TELEPHONE NUMBER: . . . .
ADDRESS: . . . .
- 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: . . . .
- NAME OF PERSON INDEBTED TO THE CLAIMANT: . . . .
DESCRIPTION OF THE PROPERTY AGAINST WHICH A LIEN IS CLAIMED (Street address, legal description or other information that will reasonably describe the property): . . . . . . . . . . . . . . . .
- NAME OF THE OWNER OR REPUTED OWNER (If not known state “unknown”): . . . .
- 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: . . . . . . . .
- PRINCIPAL AMOUNT FOR WHICH THE LIEN IS CLAIMED IS: . . . .
- 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.
Must the Washington mechanics lien be notarized?
Yes, the recommended form above asks that you or your representative swear to the mechanics lien’s accuracy and truthfulness.
2. Record the mechanics lien
Once you have properly prepared the mechanics lien form, you may now record it. The mechanics lien in Washington must be filed in the auditor’s office in the county where the project is located. It must be filed no later than 90 days after the last day of performing work on a project.
Can a Washington mechanics lien be filed online?
Yes, Handle can take care of filing the mechanics lien for you, from sending the correct pre-lien notices to making sure that the mechanics lien you are signing is properly filled out. By using Handle, you get experts to check and verify the accuracy of your lien claims and you are assured that all statutory deadlines will be met.
What happens after filing a Washington mechanics lien?
You must serve a copy of the mechanics lien on the property owner 14 days after recording the lien. Failing to do so will prevent you from recovering your attorney fees and other lien-related costs upon successfully enforcing the lien.
3. Enforce/release the mechanics lien
If you think you are not going to get paid after filing a Washington mechanics lien, you must then consider filing a foreclosure lawsuit against the property. The Washington mechanics lien is only good for 8 months after the recordation date, so you must enforce the lien before this time elapses.
If you have gotten paid, or even if you have not but the lien has already expired, you must release the mechanics lien. This lien release must be executed immediately after receiving payment. If the court deems that you have unjustifiably delayed the release of the lien, you may have to pay hefty fines and penalties, including the attorney fees and lien expenses of the property owner.
Important Deadlines to Keep Track of When Filing a Washington Mechanics Lien
3 Common Mistakes When Filing a Washington Mechanics Lien
1. Failing to serve the Notice of Right to Claim a Lien right away
Because the Notice of Right to Claim a Lien has no hard and fast deadline, most construction participants take too long to serve this notice.
Note that while failure to serve this notice may not revoke your lien rights, sending this notice too late will limit the amount that you can claim with your mechanics lien.
2. Overstating the lien amount
Always try to be as accurate as possible when writing the amount that you are going to claim with your mechanics lien. Overstating the claimed amount could result in having your lien declared frivolous, and you may have to pay fines and penalties.
3. Failing to send a copy of the mechanics lien to the property owner
You must serve a copy of the recorded lien to the property owner so you may recover your attorney fees and other lien-related expenses. If you skip this step, you will not have the chance to recover the lawyer fees that you could otherwise earn back from a successful foreclosure lawsuit.