Construction professionals at work

Early this week, Stoel Rives, LLP (@stoelrives), the publisher of the construction law blog Ahead of Schedule, announced the publication of a “Washington state lien law treatise.”

I’ve downloaded and read this treatise, and as further explored in this post, highly recommend it as a comprehensive reference book for Washington attorneys, or anyone (please, let there be so very few of you) who want to know everything you can about the nuances in the state’s mechanics lien and state bond claim laws.

You can download the publication for free from Stoel Rives at the following page:  Download The Construction Lien in Washington: A Legal Analysis for the Construction Industry.

The Authors and History of the Washington Lien Law Treatise

According to Ahead of Schedule, this new treatise “builds on two earlier works: Professor Brian A. Blum;s Mechanics’ and Construction Liens in Alaska, Oregon and Washington, and Michael F. Keyes Construction Lien Practice and Procedure Manual for the State of Washington.”  These two publications are helpful for and historically referenced by the Washington construction lawyer, but it is true, as reported by Ahead of Schedule, that the resource had “not been updated for nearly 20 years.”

This is always the drawback to treaties and legal manuals like those two referenced works, and even the treatise published by Stoel Rives this week. While the material is comprehensive and up-to-date, it’s contents will soon be challenged by the unstoppable force of time and change, which is admitted in the treatise’s introduction: “Please note that the analysis in this book is believed to be accurate on the publication date and may become inaccurate if the law is changed after publication…”

Nevertheless, for the foreseeable future, this treatise will be an excellent starting point for any research a party needs to conduct about the state’s lien laws.

That is at least addressed in theory by co-author Bart Reed, who states that the treatise is published “with today’s professional in mind…[i]n an electronic, user-friendly format, and readily accessible for smartphone users, it is also searchable and can be updated without the confusion of replacement pages or pocket parts.”

The ability to update an electronic document is much easier than updating something in print, granted, but only time will tell whether this treatise is actually maintained.

I would point the authors to an effort being employed and managed by Matthew Devries (@matthewdevries) and the ABA Construction Law Section, who launched a blog to keep their most recent publication – Construction ADR – up to date.

This is a great proposed format to keep legal publications, like Stoel Rives treatise, updated.

The authors of this treatise are Karl Oles (partner Stoel Rives) and Bart Reed (Of Counsel Stoel Rives) are both attorneys  involved with the firm’s construction practice group.

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What’s Included in the Treatise and What Isn’t

From a very high level, The Construction Lien in Washington comprehensively analyzes the construction lien and lien-like remedies available in the state. To that end, the treatise addresses traditionally mechanic lien claims (on private projects), lien-like bond remedies (on state/county projects), and the stop notice remedy. The treatise does not address Miller Act Claims, which is the lien-like remedy available on federal projects in Washington state, acknowledging that is it not within the scope of the publication.

Navigating through the construction lien laws is a complicated affair, and I appreciate and like the breakdown established in this treatise. The Table of Contents includes the following, which is a nice breakdown of the construction lien process, step-by-step, and concluding with lien-like remedies of the stop notice and public bond claim:

  1. Introduction
  2. The Elements of a Construction Lien
  3. Pre-Claim Notices
  4. Recording a Construction Lien Claim
  5. Foreclosing A Construction Lien Claim
  6. Defending A Construction Lien Claim
  7. The Stop Notice
  8. Lien-Like Remedies on Public Projects

The only adjustment I would make is to rename Chapter 2. It’s name, “The Elements of a Construction Lien” made me think that the chapter would focus on the lien contents. This, however, is addressed in Chapter 4, and instead, the Chapter 2 largely focuses on the circumstances that must exist for a construction participant to have a lien right.

Two Notes or Comments I’d Like To Make About The Treatise

After a review of the treatise, here are a few notes or comments I would make about the discussions and choices of the authors.

#1) Disagree: Amending A Mechanics Lien After Partial Payment Received

If there is one universal black hole in mechanics lien statutes across the country, it is in giving the parties direction on what to do when they have a mechanics lien filed and they receive partial payment. Washington state, therefore, is certainly not alone in having a statute silent on this point. We addressed this question in the article: What Do I Do With My Lien If I Receive Partial Payment.

The authors only briefly address the issue in Washington’s law, in Chapter 4, Page 6, with the following:

The statute does not require a lien claimant to file an amended lien claim upon partial payment, but this would be good practice, particularly if a substantial payment is received. If the original lien claim is for $30,000 and $15,000 is paid, the claimant may be vulnerable to the charge that her lien claim, which is twice the amount now claimed to be due, is clearly excessive in amount.

The treatise, therefore, acknowledges that Washington’s statute are silent on this point but suggests it would be a “good practice” to file an “amended lien claim upon partial payment.”  However, I disagree with the authors on the good practice suggestion.

Filing an amendment to a mechanics lien claim, especially when the statutes don’t provide a procedure for doing so, is a bit legally dangerous. Since the timeframe to file a lien claim is strictly established, “amending” the claim after this window closes may actually reset the clock for lien claimants. In a partial payment situation, the best practice is to file a partial release, which poses no risk of accidentally shooting yourself in the foot and pushing your lien claim outside the lien window.

#2) Liberal v. Strict Construction Could Afford More Discussion

At multiple points throughout the treatise the authors discuss the seminal Washington Supreme Court case from 2011, Williams v. Athletics Field.  One place where the case is discussed in particular is the Introduction. This contains a very pithy discussion of “The Construction and Interpretation of Construction Lien Statutes.”  See Chapter 1, Page 2.

Construction attorneys in Washington should challenge a lot of the state’s mechanics lien law “precedent” as being undermined by Athletics Field. The discussion mentions the 2011 determination in Williams v. Athletics Field that “strict construction” should be used first to see if the parties and the work qualify for lien protection, but that then the “statute should be construed liberally to protect persons who fall within its protection.” However, in my opinion, the discussion of the strict v. liberal friction in Washington law is glossed over too quickly and the full impact of the Williams v. Athletics Field decision is minimized.

We’ve extensively discussed the idea of “Strict v. Liberal” interpretation of the mechanics lien laws on this blog.  We specifically discussed it with respect to the Athletics Field decision in 2011 in “To Strictly Construe or Not Strictly Construe? Washington Supreme Court Clears The Air.

What is extraordinarily interesting about the Athletic’s Field decision is that the Supreme Court stepped in and corrected decades of case law in Washington that wrongly construed mechanics lien laws. If you look at case briefs, trial decisions, and appellate decisions on lien laws over the past 30-40 years, the cites will be riddled with reference to cases like Lumberman’s of Washington, Inc. v. Barnhardt.  The Supreme Court’s 2011 opinion explicitly stated:

To the extent Lumberman’s or other cases suggest that the statute’s mandate of liberal construction has been supplanted by a common law rule of strict construction, we disapprove them.

What does this mean about all the cases that for years relied upon strict construction to reach the conclusion?  I think only time will tell. Construction attorneys in Washington should challenge a lot of the state’s mechanics lien law “precedent” as being undermined by Athletics Field.