If you haven’t been paid for labor, services, or materials furnished on a construction project in Washington, you may be able to collect the money you are owed by filing a mechanic’s lien (also referred to as a Claim of Lien). Let’s look at exactly how to file a Washington mechanics lien.
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Before Filing a Lien: Determine If You Are Qualified To File A Mechanic’s Lien
Not everyone is entitled to file a mechanic’s lien. The services, materials or labor you furnish to a construction project must qualify for protection under Washington’s lien laws. Liens are authorized by RCW 60.04.021 for any person furnishing labor, professional services, materials, or equipment for the improvement of real property. The trick is determining whether your construction project is a qualifying improvement, which is defined by RCW 60.04.11(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.
Suppliers to suppliers are not protected.
Confirm You Preserved Your Mechanic’s Lien Rights
It’s more than just who’s allowed to file a Washington mechanics lien, though. In Washington, most construction participants must deliver some type of notice to preserve their rights to file a mechanic’s lien.
Those who did not contract with the property owner must deliver a “Notice to Owner” within 60 days of first furnishing labor or materials to the project. If you did not send a preliminary notice on time, but have furnished labor or materials within 60 days, there are some protections for those who sent late notices as to labor and materials furnished within a 60 day period from when the notice is sent.
While most notice requirements are for those who did not contact with the property owner, in some circumstance, those who did contract with the owner must provide a “Model Disclosure Statement” before commencing work to preserve their lien rights. This is required on select residential and commercial projects. You can learn more about this requirement at this post: Deliver the Model Disclosure Statement in Washington…Or Else.
If you furnished these notices, you’re in luck, and you’ve preserved your right to file a mechanic’s lien. If you haven’t furnished the requisite notice, you may not have lien rights.
Step 1: Preparing The Mechanics Lien Document
Washington has strict requirements about what your mechanic’s lien must contain, and you can find those requirements at RCW 60.04.091. The statute itself proscribes a form to use to file a Washington mechanic’s lien. Download the form for free here: Free Washington Mechanic’s Lien Form.
a. Claimant’s Name, Number, and Address
If you’re filing a mechanics lien, it’s important to include your name, number, and address on the mechanics lien. Keep in mind, this is the name of who’se making the lien claim – so, if you’re filing a lien on behalf of your business, the business’ name, number, and address must be present, here. Any information that’s incorrect could ultimately lead to an invalid claim – so attention to detail is required.
b. First and Last Furnishing Date
The statute technically calls for “The first and last date on which the labor, professional services, materials, or equipment was furnished or employee benefit contributions were due.” Naturally, it’s important to keep track of these dates.
The first and last furnishing dates are generally the first and last dates when work was performed, pursuant to the contract, for work that’d give rise to lien rights on the project. That means first furnishing should generally be when work begins – things like pulling a permit and walking the job site before the project begins won’t constitute first furnishing.
For last furnishing – punch list or warranty work will generally not constitute “last furnishing”. Rather, the last date where substantial work was performed will generally be considered the last furnishing date.
c. Person Indebted to the Claimant
A Washington mechanics lien must include “The name of the person indebted to the claimant.” This will usually be your customer – but, if someone else was supposed to pay you for your work, that person might be included here. When in doubt, it might be worthwhile to put both, just to be sure.
Keep in mind that it’s common for businesses to operate under one name (like a dba or a nickname), but for their actual business to be called something else. Lien claimants should be as accurate as possible when filing a lien, so it may be worthwhile to double-check their name. Some easy ways of doing this may be to take a look at the contract for work or to look at prior invoices, purchase orders, etc.
d. Description of the Property
It’s common to think that a legal property description is required for all lien claims. However, the Washington mechanics lien statute calls for “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.”
Still, a legal property description is the most official way to describe the property, and failing to properly describe the land in some other way could result in the loss of lien rights. So, when possible, it’s a good idea to include a legal property description. It can be hard to research the legal property description on your own, but this article should help: Mechanics Liens: Researching the Legal Property Description.
e. Name of the Property Owner or Reputed Owner
This is simple on its face, but researching the property owner information can be a struggle. You can learn more about that process here: How to Find the Property Owner on a Construction Project.
Still, note that there’s some wiggle room here with “reputed owner.” A reputed owner is someone who’s reasonably believed or held out as the property owner. That way, if appearances aren’t what they seem, a lien claimant won’t lose the ability to file a mechanics lien simply because they got the owner’s information wrong (as long as there was good reason for believing the “reputed” owner was actually the owner).
Note, though, that Washington is a rare state where the owner’s information isn’t always required. If the owner or reputed owner isn’t actually known, the lien claimant can state that the owner isn’t known right there on the lien. It runs counter to (nearly) every other state strictly requiring ownership information, but that’s the rule according to § 60.04.091(e). Still, it’s a good idea to include the owner’s information in Washington mechanics lien claims.
f. The Lien Amount
This part’s easy – it’s the amount of money for which the lien is being claimed. Keep the rules described at the beginning of this article in mind – some debts might not be lienable. But, generally – construction work performed but not paid for will give rise to lien rights.
Don’t take too many liberties with the lien amount. Interest, attorney fees, and filing fees can’t be included in a lien claim, and neither can other extraneous amounts. Rather, the lien amount should reflect what is owed but unpaid for work performed. Note that exaggerating a lien claim can lead to the loss of lien rights and even liability: Don’t File Fraudulent Mechanics Liens.
g. Assignee (if the Lien Has Been Assigned)
This probably isn’t something most lien claimants have to worry about. But, if the lien claim has been assigned to someone else at the time the lien is filed, the assignee (person receiving the right to payment) must be featured on the lien form.
If you’re not familiar with assigning a mechanics lien, don’t sweat it – we’ve got you covered! Things to Think About When Assigning a Mechanics Lien.
h. Signature and Acknowledgement
Before filing the lien, it must be signed and acknowledged. That means the document must be notarized. Again, it’s important that the document is as accurate as possible, because you’re swearing to its accuracy at this point. So, if you know something on the document is inaccurate, it’d be wise to fix the issue before signing and acknowledging it. Otherwise, some liability might arise later on.
Step 2: File the Lien
a. How Long Do You Have to File the Lien?
Washington requires all parties to record their mechanic’s lien within 90 days after last furnishing services, labor or materials to the project. There are no excuses for a late filing – once the deadline has passed, it’s gone forever. If you record a tardy mechanic’s lien, it will be void.
b. Where Is the Lien Filed?
The Washington mechanic’s lien – statutorily referred to as a “Claim of Lien” – must be recorded in the county auditor’s office where the construction project itself is located. If a project is situated in two counties, it must be recorded with both auditor offices.
c. What Do You Need to Bring?
Generally, filing a Washington mechanics lien is simple compared to some other states. Lien claimants will generally only need to bring their lien claim and their checkbook. Filing a mechanics lien isn’t free, but each county has its own fee schedule for recording documents, and those fees are subject to change. So, claimants are usually better off waiting to write their check until they’re sure what the filing fees will be.
d. How to File the Lien (In-Person, by Mail, or Electronically)
There are a few different ways to file a lien. Let’s discuss the 3 most common methods” filing in person, filing by mail, and electronically filing.
i. Filing In-Person
Filing a Washington mechanics lien in person is the safest way to file a lien – a claimant can immediately be sure that the fees are correct, and it’s the fastest and easiest way to know whether the lien was filed or rejected. Filing in person isn’t always practical, though. For claimants who aren’t able to go to the county auditor’s office and file their lien themselves, mailing or electronically recording (“e-filing”) the lien are great options.
ii. Filing by Mail
Filing a mechanics lien by mail, when done right, can alleviate the stress and time associated with having to file a mechanics lien in person. But, as mentioned above, it’s important to verify filing fees. Since a check will be mailed along with the lien document, it’s crucial to verify the filing fees before actually filing the lien. Mechanics liens are regularly rejected for including incorrect fees (whether the fees have been overpaid or underpaid).
iii. Electronic Recording
Most counties in Washington allow for mechanics liens to be electronically recorded. This combines the relative ease of filing by mail with the certainty which comes with filing a lien in person. When a document is electronically recorded, that recording is placed remotely, but the county auditor’s office must still review the filing. Typically, they’ll reply pretty quickly indicating whether the document has been accepted or rejected.
However, in order to electronically record documents in Washington, a claimant will likely need to have an account with an electronic recording service provider, like Simplifile. Here’s a list of Washington counties Simplifile currently operates in: Simplifile E-recording in Washington.
Step 3: What to do After the Mechanic’s Lien Was Recorded
Filing a lien, in and of itself, doesn’t solve anything, and a lien filing isn’t the end of the road. There are some other important steps to consider here…
a. Send Notice That the Lien Was Recorded
Washington requires all mechanic’s lien claimants to serve a copy of the mechanic’s lien on the property owner within 14 days of recording. Failure to serve the lien might not invalidate it, but it will disqualify you from recovering your attorney fees in any action to enforce the lien (Washington law typically allows lien claimants to recover their attorney fees). So, not having the lien served can be an expensive oversight. The mechanic’s lien must be served on the property owner by certified or registered mail, or by personal service.
Besides all of the requirements, though, this is just a basic, important part of the payment recovery process (at least when a lien is involved). Filing a mechanics lien, by itself, doesn’t result in payment. No, when a lien is filed, the lien claimant uses the filing itself as leverage to get paid. If an owner isn’t notified of the lien being filed, the leverage is completely ineffective.
b. Talking Payment
Once the owner is aware of the lien claim, it’s time to talk payment. Generally, owners and general contractors don’t like dealing with lien claims, and owners are naturally wary of anything that could harm their title to the property. So, even if they’ve been unwilling to make payment, once a lien has been filed, they may come around.
The vast majority of mechanics lien claims are resolved without the need for legal action. Still, an owner or contractor may need a little extra push after a lien has been filed. If a lien has been filed but payment hasn’t been made, sending a document like a Notice of Intent to Foreclose can help. By sending a Notice of Intent to Foreclose, a claimant can show the owner and/or contractor that they’re not afraid to do what it takes to get paid on the lien – even if that means filing a lien enforcement suit.
c. Enforcing the Lien
Nobody likes mechanics liens, and everyone really hates a lawsuit. Still, if push comes to shove and payment still isn’t made, filing a lien enforcement suit may become necessary. By enforcing a mechanics lien, a lien claimant is filing a lawsuit to collect the payment on the lien. And, if worse comes to worst for a property owner, their land may even be foreclosed.
Of course, lawsuits are expensive. So, before proceeding with a lien enforcement suit, it’s worth weighing whether filing suit is worthwhile. But, as alluded to above, Washington mechanics lien claimants who successfully enforce their claims are entitled to recover attorney fees and other costs – so, when a claim is rock-solid, there might not be all that much risk involved.
Note that there’s a time limit, though – mechanics liens don’t last forever. In Washington, mechanic liens must be enforced within 8 months from the date the lien was recorded.
d. Releasing the Lien
Once payment has been made one way or another, it’s time to release the lien claim. Washington law requires that the lien claimant “immediately prepare and execute a release of all lien rights…” once full payment is made. Even if payment isn’t made, it might be a good idea to release an expired lien to avoid potential liability down the line.
Releasing a filed lien is done similarly to filing the lien, itself. A lien release must generally be in a recordable format, must identify the previously filed mechanics lien claim, and must generally request that the lien be released. We’ve got a quick post on that here: How To Cancel a Washington Lien.