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Can a Notice of Providing Prof Services be issued without it being 2nd on the title?

WashingtonLien PriorityPreliminary Notice

When clients banks run reports our Notice shows up as a lien with us in 2nd position. Banks won't proceed if they are not 2nd on the title. Is there a way to give notice without being placed 2nd on the title?

1 reply

Feb 26, 2020
The Notice of Furnishing Professional Services created by § 60.04.031(5) intentionally establishes high priority for a design professional. When that notice is filed, it specifically creates lien priority over subsequent mortgages and construction loans. So, if a design professional records the Notice of Furnishing Professional services, that filing will automatically take priority over mortgages filed afterward by a bank - which is kind of the point of the notice in the first place (to establish that heightened priority). It's natural for a bank to be wary of a high priority design professional notice, though. And, if the high priority is blocking a customer from getting their job done, then it may be necessary to avoid it.

Reducing priority when filing a Washington Notice of Furnishing Professional Services

One option for dropping priority while also keeping a Notice of Furnishing Professional Services in place might be to enter into a subordination agreement with the party who's troubled by the high priority. Ultimately, that'd be an agreement between the parties to drop the design professional's priority below the bank's. Alternatively, waiting until after the bank has secured its interest in the property then filing the notice might be an option, too. It's a simple option, but for a design professional who's working closely with or has a good rapport with the owner and bank, it could be an easy solution. Finally, keep in mind that the Notice of Furnishing Professional Services is ultimately an optional filing. So, if a design professional isn't worried about their priority being behind a mortgager or potential purchaser, then proceeding to file the notice might not always be necessary. Lien rights would still be available, just to a lesser degree.

Additional resources

For more information on Washington notices: Washington Preliminary Notice Guide and FAQs. For more on mechanics lien priority: Lien Priority – What Happens When Everybody Is Trying to Grab a Piece from the Same Pie?
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