Filed a lien without first filing a prelim notice. I don’t know what I should do. A customer didn’t pay and now I just filed a lien. What Might happen from here? What should I do? Etc. etc. please help
1 reply
Oct 15, 2019
There are a lot of things to consider when a mechanics lien is filed which may be flawed. First, it's worth looking at Washington's preliminary notice requirements to determine whether there were even any applicable notice requirements that needed to be followed in the first place. You can learn more about which notice requirements may or may not apply here: Washington Preliminary Notice Guide and FAQs.
When notice was required, but not sent, a filed lien will generally be invalid and unenforceable. Meaning, if that lien is challenged, or if the lien must be enforced, then the lien would very likely not stand. With that being said, recall that most mechanics lien disputes don't actually make it to a lawsuit. And, it's possible that a lien claim could lead to payment, even if it's flawed. Of course, if another party - like a customer and/or property owner - disputes the validity of the lien claim for failure to send notice, a lien claimant may end up needing to give up their lien claim and release the document from the public record.
But, even in a situation where a lien is flawed and may ultimately need to be released, keep in mind that there's a difference between fraud and an honest mistake. So, minor procedural errors that may render a lien claim invalid generally won't give rise to excessive liability. Often, a lien claimant will be able to simply release their filed lien claim, if necessary, and they usually won't face all that much danger as long as the debt giving rise to the lien claim was actually owed for lienable work. Though, if a Washington mechanics lien is deemed excessive or frivolous, then the lien claimant may be liable for the owner's costs and attorney fees associated with having the lien removed.
What to do when there's an issue with your claim
There's no single course of action that will make sense for every lien claimant who's filed a questionable lien. Generally, though, the two potential options will be to (1) Sit tight and try to recover payment via the lien, but without enforcing the mechanics lien claim; (2) releasing the filed lien and pursuing some other recovery option. In a situation where the lien's validity has been challenged (and where the challenge points out an actual issue with the lien claim), it will often make sense to release the lien and try to recover in some other way.
Ultimately, though - it might be helpful to first consult a local construction attorney before deciding on what to do with a lien claim. They'll be able to assess the alleged flaws, as well as other potential avenues for recovery, then advise on how best to move forward.