Washington State Lien Law Summary

Contractors, subs, furnisher of labor, professional services, materials, or equipment to owner, registered or licensed general, registered or licensed sub, architect, engineer, or other agent having control of the project. “Labor” includes amounts due and owed to any employee benefit plan on account of labor performed on the project. Note that developers, tree removal services, cabinet installers and consultants acting as prime contractors are among those considered contractors. In addition, anyone who offers to sell their property without occupying or using the building, etc., for more than one year from the date the building, etc. was substantially completed or abandoned, is considered a contractor. A person who superintends or consults on contracting work; a person who performs the activities of a contractor for the purpose of selling or leasing improved property the person has owned for less than 12 months, and a person who performs the activities of a contractor on one’s own property for the purpose of selling, demolishing or leasing the property are all now considered contractors. A claimant who provides only construction management services is neither a laborer nor a provider of professional services, and is NOT entitled to a lien. [60.04.021; 18.27.090; Blue Diamond Group, Inc., 162 Wash.App. 1060, Not Reported in P.3d, 162 Wash.App. 1060 (Wash.App. Div. 1, 2011) unpublished.] NOTE that where a claimant provides services, etc. to a project BEFORE the owner with whom the claimant contracts actually owns the property, the loan will not relate back to the date the claimant first provides the services, etc. The claim of lien cannot relate back to a date prior to the inception of the contracting party’s ownership. [Pacific Realty Associates, L.P. v. Pacific Ventures Redmond Ridge LLC, Not Reported in P.3d, 162 Wash.App. 1036 (Wash.App. Div. 1, 2011)]

Note that tenants who make improvements to rented residential property (their personal residence) in exchange for rent are not required to register as contractors in order to have lien rights. [Andries v. Covey, 113 P.3d 483 (Wash.App.2005)] Note that material suppliers do not need to be registered, unless they also install the material. [Arctic Stone Ltd. v. Dadvar, 112 P.3d 582 (Wash.App.2005)] NOTE that it is now a gross misdemeanor for a contractor to subcontract to or use an unregistered subcontractor. [18.27.020(2)(e)]

BOND:

Subs, employee trust funds and furnishers of labor or materials to general or sub, of apparently any tier. Supplier to supplier has no rights against bond. [39.08.065; LRS Electric Controls, Inc. v. Hamre Const., Inc., 153 Wash.2d. 731, 107 P.3d 721 (2005); Farwest Steel v. Mainline Metal, 48 Wash. App 719, 741 P.2d. 58 (1987); cert. denied, 109 Wash.2d 1009 (1987)]. NOTE that the Washington State Supreme Court has finally upheld the language of the statute, and now allows employee trust funds to bring claims for unpaid benefits. They have ruled that the statute is NOT preempted by ERISA. [W.G.Clark Const. Co. v. Pacific Northwest Regional Council of Carpenters, 322 P.3d 1207, 180 Wn.2d 54 (2014)]

A business that supplies temporary workers to a sub does not have bond rights, at least not where the supplier of workers has limited involvement, supervision, and responsibility on the project. [39.08.010; Better Financial Solutions, Inc. v. Caicos Corp., 73 P.3d 424, 117 Wash.App. 899 (2003); reconsideration denied]

Freight charges for hauling machinery and equipment used by a contractor are not covered by the bond. [Hamilton v. Whittaker, 186 P.2d 609 (1947)]

RETAINAGE:

Everyone performing labor or supplying materials to general or sub, of apparently any tier. Suppliers to suppliers are not covered. [60.28.015; LRS Electric Controls, Inc. v. Hamre Const., Inc., 153 Wash.2d. 731, 107 P.3d 721 (2005) Farwest Steel v. Mainline Metal, 48 Wash. App 719, 741 P.2d. 58 (1987); cert. denied, 109 Wash.2d 1009 (1987)] NOTE that any public improvement contracts funded in whole or in part by federal transportation funds must rely only on the bond, and not on retainage, to protect and pay unpaid claimants and tax authorities. [60.28.011] Note also that a business that supplies temporary workers to a sub does not have a claim against the retainage. [60.28.011; Better Financial Solutions, Inc. v. Transtech Electric, Inc., 112 Wash.App. 697, 51 P.3d (2002), review denied, 149 Wash.2d 1010, 69 P.3d 874 (2003)] Freight charges for hauling equipment used by a contractor are not covered by the retainage. [Hamilton v. Whittaker, 186 P.2d 609 (1947)] Note also that the public body may also assert a claim against the retainage for claims the public body may have against the contractor. [60.28.021]

The improvement and the land upon which it is situated. As to stop notices on funds held by lender, see “Special Notes” section, below. NOTE that where a project is a private project on public land, the lien will attach only to the improvement, and not to the realty. [60.04.021; Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wash.2d 489, 210 P.3d 308 (Wash.2009)]

-Contractor’s payment bond. [39.08.010] NOTE that highway construction contracts administered by the department of transportation, with an estimated price of $250 million or more, may have bonds of less than the full contract price, as long as the bonds are at least $250 million. [39.08.030] On projects involving the construction, alteration, repair, or improvement of any highway, road, or street, funded in whole or in part by federal transportation funds, claimants must look to the contract bond. Retainage is not required for those contracts. [60.28.011]

-Retained per­centage of funds due the contractor. These apply for all projects except the improvement of any highway, road, or street, funded in whole or in part by federal transportation funds. [60.28.011]

NOTE that where a project is a private project on public land, the lien will attach only to the improvement, and not to the realty. [Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wash.2d 489, 210 P.3d 308 (Wash.2009)]

The Notice to Owner is given by those who do not have a contract with the owner. Prime contractors are required to give the Owner the Notice to Customer, which is discussed earlier in this summary. Potential claimants are required to give the Notice to Owner or Notice to Customer in the following circumstances:

NOTICE TO OWNER:

Repair, remodel or alteration of existing owner-occupied single-family residence:

All providers of professional services, materials or equipment who do not contract directly with the owner-occupier. Professional services are defined in the code as surveying, establishing or marking the boundaries of, preparing maps, plans, or specifications for, or inspecting, testing, or otherwise performing any other architectural or engineering services for the improvement of real property. Subcontractors who provide ONLY labor do not need to give notice, but subcontractors who provide labor AND either materials, equipment or professional services need to give the preliminary notice in order to have lien rights. If no notice is given, a subcontractor who provides both labor and materials will still have lien rights for his or her labor, but not for the materials. Note that labor performed upon material before it is delivered to the job is not lienable as labor. [60.04.031; 60.04.011; Northlake Concrete Products, Inc. v. Wylie, 34 Wash.App. 810, 663 P.2d 1380 (1983); Pacific Erectors, Inc. v. Gall Landau Young Const. Co., Inc., 62 Wash.App. 158, 813 P.2d 1243 (1991), reconsideration denied, review denied 118 Wash.2d 1015, 827 P.2d 1011; Hayes v. Gwinn, 49 Wash.2d 908, 307 P.2d 1063 (1957)]

All other projects:

Every person furnishing professional services, labor, materials or equipment, except those contracting directly with owner, laborers claiming solely for labor, and licensed or registered subcontractors contracting directly with prime contractor. There is a special notice to be given by those providing professional services where the improvement itself has not been commenced, and the professional services provided are not apparent from a visual inspection of the property. This notice (for providers of professional services) is not required, but if it is not given the claimant will not have priority against anyone who acquires an interest in the property before the improvement begins. [60.04.031]

NOTICE TO CUSTOMER:

Repair, alteration or construction of a commercial building costing more than $1,000 but less than $60,000, OR for a project involving the alteration or construction of four or fewer residential units, where bid or price is greater than $1,000: All contractors contracting with the owner. [18.27.114]

PAYMENT BOND:

Anyone supplying materials, supplies or provisions to a subcontractor, including those supplying both labor and materials. Subcontractors who contract directly with the prime contractor do not need to provide a preliminary notice, regardless of whether they are providing labor, materials or both. Sub-subcontractors who supply only labor do not need to provide a preliminary notice. [39.08.065; LRS Electric Controls, Inc. v. Hamre Const., Inc., 153 Wash.2d. 731, 107 P.3d 721 (2005)] Note that where a sub or sub-sub supplies heavy equipment with operators, they MAY be deemed to only be laborers, and no preliminary notice would be required, but it is safest to send the notice anyway. The equipment must not be actually incorporated into or become part of the structure. It is also best if the claimant’s bills do not typically itemize the equipment separately from the operators. [Campbell Crane & Rigging Services, Inc. v. Dynamic Intern. AK, Inc., 186 P.3d 1193 (Wash. App. Div. 2,2008)]

RETAINAGE:

Every claimant furnishing materials, supplies or equipment, even if they’re also providing labor. [60.28.015; LRS Electric Controls, Inc. v. Hamre Const., 153 Wash.2d. 731, 107 P.3d 721 (2005)]

NOTICE TO OWNER:

Owner-occupied existing single-family residence:

-Owner-occupier

-Strongly recommended to give notice to prime contractor, though it is not required. [60.04.031]

All other projects:

Send notice to owner and prime contractor. [60.04.031]

NOTE – If prime has not posted required jobsite information, you need not send notice to prime, but we recommend it.

NOTE – Where claimant renders professional services where no improvement has been commenced, and which is not visible from an inspection of the real property, the claimant must record WITH THE COUNTY RECORDER a specific notice set out in the statute. If the notice is not recorded, the lien is subordinate to subsequent mortgagee and to subsequent purchaser. [60.04.031]

NOTICE TO CUSTOMER:

Repair, alteration or construction of a commercial building costing more than $1,000 but less than $60,000, OR for a project involving the alteration or construction of four or fewer residential units, where bid or price is greater than $1,000:

Owner. Note that this notice does not need to be given by a contractor contracting with a contractor. [18.27.114]

PAYMENT BOND:

To the contractor. [39.08.065]

RETAINAGE:

To the contractor. [60.28.015]

NOTICE TO OWNER:

Repair or remodel of an owner-occupied existing single-family residence or garage:

At any time, but only relates back 60 days from the date of mailing or of personal service. NOTE that these liens are limited to the amount not yet paid to the prime contractor by the owner at the time the preliminary notice is received, regardless of whether amounts not yet paid to the prime contractor are due. NOTE that in this subsection, a notice is received upon actual receipt by personal delivery or certified or registered mail, OR three days after mailing by registered or certified mail, excluding weekends and holidays. [60.04.031]

New single-family residential construction:

Notice may be given any time, but only relates back ten days from the date it is mailed or personally delivered. [60.04.031]

All other projects:

Any time, but only relates back sixty days before notice is either mailed to owner by certified or registered mail or personally delivered upon owner. NOTE that while statute states that notice relates back based on the date of mailing, the court has nonetheless interpreted the calculation to be based on the date of receipt. [60.04.031; CHG Intern., Inc. v. Platt Elec. Supply 23 Wash.App. 425, 597 P.2d 412 (1979)]

As to professional services rendered to property before commencement, it is best to record the notice as soon as possible.

NOTICE TO CUSTOMER:

Repair, alteration or construction of a commercial building costing more than $1,000 but less than $60,000, OR for a project involving the alteration or construction of four or fewer residential units, where bid or price is greater than $1,000:

Notice must be received BEFORE starting construction. [18.27.114]

PAYMENT BOND:

Notice must be delivered or mailed within 10 days after first delivery. NOTE, HOWEVER, that written notice given to contractor more than 10 days after materials are first delivered is effective as to materials subsequently delivered, at least where the materials are delivered on order, as opposed to being purchased under a specific contract for a fixed quantity at a given price. [39.08.065; Cascade Lumber & Shingle Co. v. Wright, 99 Wash. 421, 169 P. 833 (1918)]

RETAINAGE:

While the statute is not absolutely clear, it is best to ensure that the notice is received within 60 days after first delivery. If received later, it relates back 60 days. [60.28.015]

NOTICE TO OWNER:

Please Contact Levy von Beck & Associates for more information. [60.04.031]

NOTICE TO CUSTOMER:

Please Contact Levy von Beck & Associates for more information. [18.27.114]

PAYMENT BOND:

-That supplier has begun supplying materials, supplies or provisions to the job

-Name of sub ordering materials or to whom the materials were furnished

-Statement that contractor and its bond will be held liable for pay­ment of the materials, supplies or provisions supplied. (39.08.065)

RETAINAGE:

-Name of supplier and that supplier is or has furnished materials, supplies or equipment to project

-Name of sub ordering materials, supplies or equipment

-Statement that a lien against retained percentage may be claimed for all materials, supplies or equipment furnished by supplier. [60.28.015]

For the Notice to Owner, Registered or certified mail or personal service. Proof of timely mailing to the proper address is all that is required; claimant is not required to demonstrate actual receipt by the owner. (For a sub on an owner-occupied single-family residence, the notice is deemed received up on actual receipt or three days after mailing, excluding Saturdays, Sundays or legal holidays.) [60.04.031 Baker v. Altmayer, 70 Wash.App. 188, 851 P.2d 1257 (1993), review denied 122 Wash.2d 1024, 866 P.2d 39.]

For the Notice to Customer no method of delivery is specified, but it must be received to be effective.

BOND AND RETAINAGE:

Registered or certified mail or personal service. The consequences of refusal of delivery are not clear, thus recommend ensuring actual receipt. [39.08.065; 60.28.015]

An interim notice is not required.

An interim notice is not required.

All claimants. [60.04.091]

All claimants on bond or retainage. [39.08.030, 60.28.011]

County auditor of county where property is located AND copy to owner after recording. [60.04.091]

Public body letting the contract. [39.08.030, 60.28.011]

Filed within 90 days after claimant’s last delivery or last date on which employee benefit contributions were due. NOTE that a copy of the notice must also be sent to the owner by certified or registered mail, or personally served within FOURTEEN (14) days of filing the claim. Failure to do so forfeits any right to attorneys’ fees and costs against the owner. [60.04.091] NOTE that for separate residential units the time commences to run upon the last delivery, etc. to each unit. [60.04.091]

NOTE that where work on a contract is performed after a period of inactivity, even a small amount of work or materials will act to extend the lien filing date, so long as the work or materials are supplied at the request of the owner for the purpose of completing the original contract, and not for the purpose of merely extending the filing deadline, and not pursuant to some separate contract. (Intermountain Elec., Inc. v. G-A-T Bros. Constr., Inc., 115 Wn.App. 384, 62 P.3d 548 (2003); DKS Const. Management, Inc. v. Baker Boyer Bancorp, 118 Wash.App. 1076, Not Reported in P.3d, (Wash.App. Div. 3,2003), opinion not published.)

NOTE that the claimant can file more than one lien if necessary, as long as each lien is timely filed. The subsequent lien, as long as it is timely, can include amounts that were included in the earlier lien, even if that lien has expired, although of course double recovery is forbidden. Geo Exchange Systems, LLC v. Cam, 115 Wash App. 625 (2003).

BOND:

Received within 30 days after completion and acceptance of the project. [39.08.030]

RETAINAGE:

Received within 45 days after completion of the contract work. NOTE that the notice may be refiled every four months to keep the claim alive. If, however, the notice is not timely refiled and no action is timely taken on the claim, it cannot be revived by filing a claim at a later date, more than four months after filing or refiling the notice. If the claimant files another claim on the same project (more than four months after the initial filing or a refiling), it cannot include the same debt. (NOTE that this is different from the situation with a lien claim on a private project.) [60.28.030; Airefco, Inc. v. Yelm Community Schools No. 2, 52 Wash.App. 230, 758 P.2d 996, review denied, 111 Wash.2d 1029 (1988); Shope Enterprises, Inc. v. Kent School Dist., 41 Wash.App. 128, 702 P.2d 499 (1985)]

NOTE ALSO, HOWEVER, that where the project is conducted under the general contractor/-construction manager procedure, the project may be divided in half, and where the sub or supplier’s work is completed in the first half of the project, the public body may accept the completion of the subcontract and give public notice of its acceptance. In such a case, the public body must receive the claimant’s notice within 45 days of acceptance of the completion of the subcontract. If it is received later, such as within 45 days after completion of the entire contract, the claim will be invalid. Thus it is very important to know whether the project is operating under the general contractor/construction manager procedure, and the sooner the notice is given, the better. [60.28.011]

Filed with county auditor, AND given to the owner by certified or registered mail, or personally served within FOURTEEN (14) days of filing the claim. Failure to do so forfeits any right to attorneys’ fees and costs against the owner. The consequences of refusal of delivery are not clear, but the statute only refers to mailing, thus while it is always best to ensure actual receipt, the same argument as is used for preliminary notices may apply. In other words, it is likely that proof of proper mailing, rather than actual receipt, is all that would be required, however it has not been so decided, thus recommend ensuring actual receipt if possible. [60.04.091]

BOND AND RETAINAGE:

Presented to and filed with the public body. Per Schor, registered or certified mail, return receipt requested, is sufficient. [39.08.030; Schor at §48.03[B]]

-Name, phone number and address of claimant

-Dates first and last deliveries made or work performed, benefits became due, etc.

-Name of party indebted to claimant

-Street address or legal description of property

-Name of owner or reputed owner

-Principal amount of claim, calculated based on the outstanding or unpaid contract price where there is an agreed contract price, and where there isn’t it is the reasonable and customary charge for the labor, materials, etc. provided by the lien claimant. NOTE that if lien covers two or more separate pieces of property owned by the same person(s), lien must designate amount due on each piece. (Note that where the lien pertains to the repair or remodel of an owner-occupied existing single-family residence or garage, and the claimant does not contract directly with the owner-occupier or his/her agent, the claimant’s lien is ultimately limited to the amount not yet paid to the prime contractor at the time the prelien was given. [60.04.031]) [Top Line Builders, Inc. v. Bovenkamp, 179 Wash.App. 794, 320 P.3d 130 (Div.1 2014)] NOTE ALSO that an engineering company MAY be allowed to file one lien covering multiple properties in a development, where the company’s work improved the property as a whole and thus necessarily improved each of the parcels. But recommend filing individual liens, if possible. [Olson Engineering, Inc. v. KeyBank Nat. Ass’n, 286 P.3d 390 (Wash.App.Div. 2, 2012)]

-Signed by claimant or authorized agent who affirmatively states that they’ve read the notice of claim of lien and believe it to be true and correct under penalty of perjury. Signature shall also be acknowledged. A lien that is acknowledged using the acknowledgment form in the lien statutes, rather than the acknowledgment form in the acknowledgment statutes, is valid. An authorized agent of the claimant, such as a lien service, may sign the lien.  [60.04.091, 60.04.131; Williams v. Athletic Field, Inc., 172 Wn.2d 693, 261 P.3d 109 (Wash., 2011)]

BOND AND RETAINAGE:

Notice including name of claimant, identification of public body, amount of claim, name of principal and surety, description of project, brief description of work, services or materials provided, and signature of claimant. To apply to retainage, must specifically state that the claimant is making a claim against the retainage as well.  [39.08.030]

Within 8 months after filing lien. The owner must be named and must be served within ninety days of filing action. NOTE, however, that if a bond in lieu of claim has been posted BEFORE suit is filed, releasing the property from the lien, and the owner is not a principal or surety on the bond, then the owner does not need to be named. If other claimants who have filed liens are not included in the action, their interests are not foreclosed or affected unless they are joined as parties. THIS MEANS that if a mortgagee bank is not included AND TIMELY SERVED, the lien claim will not affect the mortgage or have any priority over it. (NOTE that the statute no longer renders the suit invalid if other lien claimants are not named — it just doesn’t affect their interests.) If another suit has been filed, a claimant shall seek to join it rather than start another suit. The claimant joining another suit must still file its complaint within 8 months of filing its lien (this time may be extended somewhat while its application to join the existing lawsuit is pending). [60.04.171; CalPortland Co. v. LevelOne Concrete LLC, 321 P.3d 1261 (Ct.App.Div.2 2014); Bob Pearson Const., Inc. v. First Community Bank of Washington, 111 Wash.App. 174, 43 P.3d 1261 (2002); Van Wolvelaere v. Weathervane Window Co., 143 Wash. App. 345, 177 P.3d 750 (2008)] NOTE that both parties may waive arbitration, even where it is a mandatory prerequisite to suit, by their actions. [Shepler Const., Inc. v. Leonard, 175 Wn.App. 239 (Ct.App.Div.1, 2013)]

NOTE that a plaintiff shall not dismiss a lien foreclosure to the prejudice of another party to the suit who claims a lien. [60.04.141] NOTE ALSO that a claim cannot be dismissed for want of prosecution once it has been noted for trial, no matter how long the delay in prosecuting. [Business Services of America II Inc. v. WaferTech LLC, 159 Wash.App. 591, 245 P.3d 257 (Wash.App. Div. 2,2011)] NOTE ALSO that if credit is given and the terms thereof are stated in the claim of lien, then the deadline for foreclosing the lien is eight calendar months after the credit expires. [60.04.141] NOTE ALSO that a lien must be foreclosed within 8 months after it is filed, but if a claimant files a subsequent lien that is still timely, it may be foreclosed within 8 months of filing it, and it may include amounts that had been included in the earlier lien, although of course double recovery is forbidden. Geo Exchange Systems, LLC v. Cam, 115 Wash App. 625 (2003). NOTE ALSO that where a lien release bond is filed, the bond is only obligated to pay sums covered by a lien foreclosure judgment. If judgment is only entered on a breach of contract action, then the lien release bond is not obligated to cover it. The filing of a lien release bond does not prevent the court from determining lien priorities or the validity of a lien, it only transfers the claim from the property to the bond, allowing the owner to transfer the property free of liens. [DBM Consulting Engineers, Inc. v. U.S. Fidelity and Guar. Co., 170 P.3d 592 (Wash.App. Div. 1, 2007); Olson Engineering, Inc. v. KeyBank Nat. Ass’n, 286 P.3d 390 (Wash.App.Div. 2, 2012)] NOTE THAT where the claimant seeks foreclosure of a lien in a case where a lien release bond is filed, and establishes the validity of his or her lien, the claimant will be entitled to collect on the bond where if the court authorizes the claimant to execute on it, even if the court order doesn’t explicitly ‘foreclose’ the lien. [Stonewood Design, Inc. v. Heritage Homes, Inc., 269 P.3d 297 (Wash.App. Div. 1,2011)] NOTE ALSO that where an owner is served but has not been joined in a lawsuit, the foreclosure may still proceed. [60.04.141; Diversified Wood Recycling, Inc. v. Johnson, 251 P.3d 293 (Wash.App. Div. 1,2011)]

BOND:

Always set deadline within 1 year of last performance or actual delivery date. Within 6 years after filing notice of claim, however no attorneys’ fees are allowed if suit is brought within 30 days after filing notice of claim. If, however, the bond itself specifies a shorter period, that may control, thus if there is any kind of issue it is essential to obtain a copy of the bond itself. (Re: 6 year deadline, see Industrial Coatings Co. v. Fidelity and Deposit Co. of Maryland, 117 Wn.2d 511, 817 P.2d 393 (1991).)

RETAINAGE:

Within 4 months after filing the notice of claim. Notice may be refiled every four months to keep the claim alive. If, however, the notice is not refiled and no action is timely taken on the claim, it cannot be revived by filing a claim at a later date, more than four months after filing or refiling the notice. If the claimant files another claim on the same project (more than four months after the initial filing or a refiling), it cannot include the same debt. (NOTE that this is different from the situation with a lien claim on a private project.) [60.28.030; Airefco, Inc. v. Yelm Community Schools No. 2, 52 Wash.App. 230, 758 P.2d 996, review denied, 111 Wash.2d 1029 (1988); Shope Enterprises, Inc. v. Kent School Dist., 41 Wash.App. 128, 702 P.2d 499 (1985)]