Am I required to send preliminary notice? If not, does the 60day rule apply to me?

2 weeks ago

I was the subcontractor on a large single family home deck project in washington state. I have been paid very little by the GC. I provided mainly labor in the form of 3 laborers, and occasionally myself. I also provided some construction consultation/management and minimal materials (maybe $100). I have thus far been paid approx $5k and am still owed about $19k mainly labor. Approximately 50% of the yet unpaid labor was performed more than 60days ago. I would like to place a lien on the owner.

I read RCW 60.04.031 and it seems like I am required to give notice of right to clam a lien. Am I exempt? if so, is my lien still constrained by the 60day rule? The remaining unpaid balance on the GC’s contract is approximately $11k. Is this the maximum I can lien for even if I do not have to provide notice?

Thanks

Senior Legal Associate Levelset

Washington subcontractors are generally required to give preliminary notice (called a “Notice to Owner”) under RCW 60.04.031, as you mentioned above. And, the safest way to proceed will always be to send preliminary notice within the expected timeframe (60 days).

However, even if notice isn’t sent on time, there may be some recourse available. As I’ll discuss below, late Notice to Owner can preserve the right to lien work that was performed up to 60 days before the notice was sent. Plus, keep in mind that the mere threat of lien can be a powerful tool for compelling payment.

Let’s break things down a bit further, below.

Notice of Intent to Lien
As briefly mentioned above, the mere warning or threat of a lien claim can work to compel payment. By sending a document like a Notice of Intent to Lien, a claimant can show their customer and the property owner that they mean business. And, because a mechanics lien is such a powerful tool, an owner and/or contractor in receipt of a Notice of Intent generally can’t afford to call it as a bluff. Not to mention, by sending the notice to the owner in addition to the contractor, that can work to put additional pressure on the customer to resolve the issue before it snowballs out of control. More on that here: What Is a Notice of Intent to Lien and Should You Send One?

Preliminary notice and laborers
Washington’s preliminary notice rules have an exception for parties who only provide labor to the project. Under RCW § 60.04.031(2), “Laborers whose claim of lien is based solely on performing labor” will not be required to send preliminary notice, under the state’s general preliminary notice requirements.

However, RCW § 60.04.031(3) creates a notice requirement specifically requiring notice for projects that repair, alter, or remodel existing owner-occupied single-family residences. That notice requirement applies to “Persons who furnish professional services, materials, or equipment” in connection with the work. “Furnishing professional services, materials, or equipment” is defined to include “the performance of any labor.

So, because of the specific preliminary notice requirement created by RCW § 60.04.031(3), a claimant providing labor to a residential project would likely need to send a Notice to Owner in order to preserve the right to lien where the owner lives on the property.

Late notice partially effective
Under RCW 60.04.031, when notice is required late notice will still be partially effective. As you hinted at in your question above, a preliminary notice that’s sent late will only be effective to preserve the right to lien for amounts owed for work performed in the 60 days before the notice was sent, as well as the work that comes after the notice. However, on a new construction single-family residence, late notice will only preserve the right to lien for work performed 10 days before the notice rather than 60. But again – this is only for new construction. So, for an addition to an already-existing residential property, late notice would protect the prior 60 days rather than 10.

Bottom line
While laborers on commercial and multi-family residential projects may not need to send notice to preserve their right to lien, there’s an open question as to whether providing the labor of others would necessitate notice. But, presumably, notice would be required – and it’s generally a good idea to send notice anyway.

Ultimately, for single-family residential projects, that’s probably a moot point. The notice requirements for those projects pretty specifically require than any party hired by someone other than the owner must send a Notice to Owner – including those who simply provide labor.

But, not all hope is lost if notice isn’t sent on time. As discussed above, notice may be sent late. And, when notice is sent late on a project that alters existing residential property, that notice will preserve the right to lien for the previous 60 days work as well as any work provided after. So, a lien claimant who’s sent notice late might not be able to file a mechanics lien for everything they’re owed, but at least some of the work done might be protected by the lien claim.

If you have any questions about the requirements of a Washington mechanics lien, itself, here are some great resources:
(1) Washington Mechanics Lien Guide and FAQs;
(2) How To File A Washington Mechanics Lien | Step-By-Step Guide

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