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Determining next steps in enforcing a mechanics lien

We are a subcontractor on a project in which the owner is refusing to pay the prime contractor, therefore we are not getting paid. I filed a lien claim in March of this year. My understanding is that in order to collect on it, we have to hire an attorney to file a lawsuit within 8 months. The amount owed is $6428. This is a relatively small amount, but for a small company, it is a significant amount. However, the cost of hiring an attorney to file the suit probably makes filing the suit not worth it to collect that amount. Does the lien also allow for reimbursement of the attorney's fees? I'm just wondering how we should proceed with this. Thank you in advance for your help.

1 reply

Jul 30, 2019

I'm really sorry to hear about that. Deciding on how to proceed with a filed mechanics lien can be challenging, especially in situations where the lien amount is in the gray area you described above. Most construction businesses can't afford to take a loss of over $6,000 - and none should have to.

Before getting too far along - to confirm the deadline for this decision: a Washington mechanics lien must be enforced within 8 months from when it was filed. Otherwise, the lien will expire.

Regarding the recovery of attorney fees, under § 60.04.181 of the state's mechanics lien statute, the prevailing party in a Washington mechanics lien action may be entitled to attorney fees. However, this isn't automatic. Rather, it's up to the discretion of the court. In situations where the nonpayment is particularly egregious, a court might be more inclined to include attorney fees in its award. But, in terms of how often attorney fees are granted to lien claimants, there isn't really any data to point to. Though, consulting a local construction attorney familiar with lien enforcement actions might shed some light here.

As for deciding whether it's a worthwhile endeavor - that can be a hard decision for any lien claimant. Levelset has actually written an article on the topic: Is Foreclosing a Mechanics Lien Worth It? That article, much like your question above, states that for most claimants, it comes down to the amount at stake and whether the costs and risks of litigation make sense. But, before making a decision one way or another, it's a good idea to at least try and see how much it would be to pursue an enforcement action on the lien. An attorney could always surprise you with a reasonable rate, and if the case is strong, they might be amenable to a contingency agreement or some other unique payment plan.

Finally, it's worth noting that there may be one last opportunity to force payment before having to pursue a lien enforcement action. By sending a warning like a Notice of Intent to Foreclose, a lien claimant can show the property owner and/or contractor that they're serious about getting paid, and that they're unafraid to take the claim to court, if necessary. Because it's such a scary proposition for a property owner (they could lose their property!), owners generally can't afford to ignore the potential for a lien enforcement action. More on that here: What Is a Notice of Intent to Foreclose?

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