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In some cases, general contractors must submit notice to owner on private projects.
Model Disclosure Statement due before work begins on all residential projects of over $1,000; and commercial projects between $1,000 and $60,000.
General contractors are not required to send notice on public projects.
Since GCs will not make a claim against their own bond for non-payment, they do not have bond claim rights, and have no preliminary notice requirement.
Subcontractors and suppliers must send notice of right to claim lien on private projects.
On the new construction of a single-family home, the Notice to Owner should be delivered within 10 days of first providing labor or materials to the project.
Subcontractors and suppliers must send notice on public projects.
Notice to contractor must be sent to the prime contractor within 10 days if contracted with a sub or sub-sub.
Model Disclosure Statement
Contractors hired directly by the property owner will be required to provide a Model Disclosure Statement (also referred to as a Notice to Customer) only if:
• The project is for the repair, alteration, or construction of a residential property of 4 or fewer units and the bid price is over $1K; or
• The project is commercial and the bid price is between $1K and $60K.
Notice to Owner
Those who didn’t contract directly with the property owner or the GC are typically required to send a Notice to Owner to secure mechanics lien rights.
If you are only furnishing labor to the project, then this notice isn’t required. However if there is any material component to the contract or furnishing, a preliminary notice is required for full lien rights protection. If you are providing labor and materials to the project, it may be possible to file a mechanics lien for the value of the labor portion of your work without sending a preliminary notice. However, it’s best practice to send preliminary notice on every project to avoid any limitations regarding lien rights.
Model Disclosure Statement
The model disclosure statement is required to be provided before work begins on the project.
Notice to Owner
For full protection of lien rights, notice should be served within 60 days of first furnishing labor and/or materials to the project. However, if the project involves a new construction of a single-family, owner-occupied residential property, then notice should be sent within 10 days of first furnishing labor and/or materials.
Model Disclosure Statement
Must be served on the property owner. Also, a copy of the notice must also be retained by the contractor for a period of 3 years, so it can be provided to the Washington Department of Labor & Industries if requested.
Notice to Owner
This notice must be served on the property owner and the prime contractor. Although not required to be served on the prime contractor for existing single-family residential projects, we recommend sending one to them as well.
An interesting situation arises when working on condominium projects in Washington state. At the start of a condo project, it’s possible that the entire facility is owned by a single development company. However, this may not be the case, and if work is being performed on common elements after the units have already been sold, the condominium project may be owned by an assortment of different parties. This creates a complicated legal question about who must receive the preliminary notice.
• Learn more about providing preliminary notices on condominium projects in Washington
Model Disclosure Statement
This notice must include the notice language provided under RCW §18-27-114(1)(b) in at least 12pt font (bolded and uppercase where applicable). The notice also requires the contractor’s license registration number, the license bond number, and signed by the owner.
→ Download a free Washington Model Disclosure Statement form here
Notice to Owner
The Notice to Owner must include the notice language provided under RCW §60.04.031(4) in at least 10pt font (bolded and uppercase where applicable). The notice also requires:
• Claimant’s name, address, & number
• Property address
• Hiring party’s name
• Description of labor and/or materials to be furnished
Model Disclosure Statement
There is no specific method under the statute since the owner is required to sign. Best practice is to attach the notice to the contract documents.
Notice to Owner
This notice must be sent by registered or certified mail, or personal service.
Model Disclosure Statement
Since this notice must be signed by the owner, actual receipt is required to be effective.
• What about tenant improvements? Who needs to sign the statement?
Notice to Owner
Generally, if mailed, the notice is deemed to be served upon deposit in the mail by the proper means. However, on owner-occupied, single-family residential projects, notice is considered served within 3 days of deposit in the mail by the proper means; excluding weekends and legal holidays.
Model Disclosure Statement
Failing to provide this notice prior to work is not only fatal to the contractor’s lien rights, but can also subject the contractor to penalties from the Washington Department of Labor & Industries.
• Dive deeper: Deliver the Washington Model Disclosure Statement, Or Else
Notice to Owner
This notice can be sent late, but it will limit the amount of lien protection. On most projects, the late notice will cover labor and/or materials provided in the 60 days preceding service of the notice and everything thereafter. If the project is an owner occupied, single-family residence, late notice only relates back 10 days after service of notice.
Any party who didn’t contract directly with the public entity or the direct (prime) contractor is required to send a Notice to Contractor to preserve the right to make a public payment bond claim. Notice generally won’t be required for those who merely supply labor to the project (and no materials); although its best practice to send one anyways.
Furthermore, anyone furnishing materials, supplies, or equipment can also send an additional to secure the right to make a claim for retainage. This notice is typically incorporated into the Notice to Contractor.
The Notice to Contractor should be served within 10 days after first furnishing of labor and materials to the project for full protection. The notice for retainage should be sent within 60 days of first furnishing of labor and materials. Again, these notices can be combined, so best practice is to rely on the 10-day deadline.
Both of these notices must be served on the prime contractor on the project. However, it’s a good idea to send notice to the surety for full visibility on the project.
The Notice to Contractor must contain the following information:
• Claimant’s name & address
• Hiring party’s information
• Statement that the contractor and bond will be held liable for non-payment
To make this notice effective to secure the right to make a claim for retainage, the notice should also include a statement that a lien against the retained percentage may be claimed for materials, supplies, or equipment furnished.
→ Download a free Washington Notice to Contractor (incorporates retainage notice as well)
Both notices must be sent by registered or certified mail, or personal service in order to be valid. If you have it served personally, it’s always a good idea to get a record of the receipt.
It’s unclear when these notices are deemed to be served, therefore best practice is to assume that these notices require actual receipt to be valid.
Late notice is still effective, but the amount of protection will be limited. A late Notice to Contractor will relate back to 10 days from when notice was served. A late notice for retainage is also effective, but only for the 60 days preceding the receipt of notice.
A Washington Notice to Owner should be sent to both the property owner and the prime contractor. You can learn more about Washington's preliminary notice requirements with these resource: Washington Preliminary Notice FAQs.
Regarding lien waivers: Yes, Washington construction businesses are required to waive lien rights if payment has been made. This is laid out at RCW § 60.04.071, which states "Upon payment and acceptance of the amount due to the lien claimant and upon demand of the owner or the person making payment, the lien claimant shall immediately prepare and execute a release of all lien rights for which payment has been made, and deliver the release to the person making payment." And, if a party unjustifiably withholds a lien waiver, they could face having to pay damages and attorney fees for others.
Preliminary notice is required, but the particular notice required depends on the project type and participant role in Washington.
Project participants who did contract directly with the property owner are required to provide the owner a Model Disclosure Statement:
Failure to send a Model Disclosure Statement can have significant consequences. A required party who fails to send this document can lose their lien rights and be subject to a fine.
Parties that did not contract directly with the property owner are generally required to serve a Washington Notice to Owner in order to protect their lien rights.
Note that parties who only furnish labor are not specifically required to send a preliminary notice in Washington (though a Model Disclosure statement will still be required for those parties contracting directly with the owner).
Washington’s “labor only” exception is a bit less known, which is that it protects at least some work performed by subcontractors who should have sent off a preliminary notice, but didn’t. So, here is the deal:
However, if there is any material component to the contract or furnishing, preliminary notice is required to protect the ability to later file a mechanics lien if one becomes necessary. In a circumstance in which project participant is providing labor and materials, it may be possible to file a lien for the labor portion of the work (and exclude the materials cost) without a preliminary notice…however, it is a best practice to avoid this need. It’s best practice to send preliminary notice to owner on every construction project in Washington.
As you can see, Washington’s statute contains some interesting nuances that affect preliminary notice requirements. Understand when you are required to send preliminary notice on a Washington construction project.
First, download a notice to owner or a notice to contractor form. Washington has strict regulations for the language and formatting on preliminary notice forms. Levelset’s free forms were created by construction attorneys to meet those requirements, making this part easy for you to get right.
Next, fill out your notice form. It’s important to make sure you get this part right because making a mistake on the form could invalidate your right to file a Washington mechanics lien if you’re left unpaid. Check the information your include multiple times to make sure it’s 100% accurate.
The last step is to deliver your Washington preliminary notice. You can deliver your notice via registered mail, personal delivery, or certified mail, return receipt requested.
Keep in mind that a preliminary notice in Washington is considered served 3 days after mailing, not upon delivery.
Select Preliminary Notice document.
Provide basic job information.
Levelset sends the document for you. Postage included!