Sneak Peek: Introduction

Stay current on Washington Lien laws with key updates, practical guidance, and insights tailored to legal professionals and real estate and construction industry stakeholders.

The Construction Lien in Washington: A Legal Analysis for the Construction Industry has been updated for 2024 and is available now.  

1. Key Terms. The following terms will be used with the following meanings:

   The term “claim of lien” refers to a written assertion of lien rights for work on a specific project.  A claim of lien must be recorded to be effective.

   The term “common law agent” means a person authorized to act for another, as determined by the common law of agency.

   The term “construction agent” means a person authorized to subject another’s property to a construction lien, as determined by the lien statute.  The term is defined in RCW 60.04.011(1) and RCW 60.04.041.

   The term “construction lien” refers to a security interest arising from construction work (furnishing labor, professional services, materials, or equipment) to improve private property.  Although the Washington statute is entitled “Mechanics’ and Materialmen’s Liens,” the term “construction lien” better reflects the broad range of activities that give rise to liens.[1]

   The term “lien claimant” refers to a person or an entity asserting a construction lien.  To promote clarity, the lien claimant will be referred to in the female gender and other persons with competing interests will be referred to in the male gender.

   The term “lien foreclosure” refers to actions a lien claimant may take in a court action to obtain a judgment on a debt and enforce a construction lien as a means of collecting that debt.  The term reflects an analogy to the foreclosure of a mortgage.

   The term “lien priority” refers generally to the order in which inchoate lien rights, among multiple lien claimants, first arise or the order in which lien claimants are paid following lien foreclosure.

   The term “lien statute” means RCW Chapter 60.04.

   The term “lienable work” refers to the type of work that can give rise to a lien.

   The term “liened property” refers to an interest in real property subject to a claim of lien.

   The term “perfecting” a lien means taking actions to develop inchoate lien rights into an enforceable lien, such as giving pre-claim notice (if required), recording a claim of lien, and commencing a foreclosure action.

   The term “pre-claim notice” refers to actions a lien claimant must (or may) take to maintain her lien rights before recording a claim of lien.

   The term “recording” means filing in the real estate records of a county auditor.

   The term “RCW” means the Revised Code of Washington.

   The term “stop notice” refers to a remedy that may be available to a lien claimant if the project owner is borrowing construction funds, as explained in Chapter Seven.

   Additional important terms are defined in the lien statute (at RCW 60.04.011) and will be discussed as the corresponding portions of the statute are analyzed.

2. The History and Purpose of Construction Lien Statutes.

   The construction lien was introduced into American law by statute in the late 18th century.[2]  Thomas Jefferson promoted the first lien statute in Maryland in 1791 to encourage construction work in the new national capital.  The State of Washington enacted a lien statute shortly after statehood, based on earlier territorial laws.  The lien statute has been amended over the years; the last substantial amendment became effective in 1992.

   Construction lien statutes are intended to encourage and promote the construction industry by protecting persons providing labor, professional services, materials, or equipment from the risk of nonpayment.  This protection takes the form of a security interest in the property improved.  The security interest arises by operation of the statute and does not require the property owner’s consent.

   By protecting persons and entities that provide labor, professional services, materials, and equipment, the construction lien statutes inevitably affect other persons and entities that have interests in the improved property, even if those others had no role in ordering the improvement.  The law attempts to strike a balance between the lien claimant and other interested parties.  Much of the complexity of construction lien law arises from this quest for balance.

3. The Construction and Interpretation of Construction Lien Statutes.

   Construction liens were unknown at English common law, so the rule that statutes in derogation of common law will be strictly construed applies.[3]  This rule may be used by a court to justify refusing to extend lien rights to dubious or marginal cases.[4]  However, when enacting RCW 60.04, the legislature provided that most sections should be “liberally construed to provide security for all parties intended to be protected by their provisions.”[5]  The two rules need to be considered together:  the lien statute should be construed strictly when determining whether lienable work has been done and whether proper notice has been given — that is, whether lien rights have arisen at all — and then the statute should be construed liberally to protect persons who fall within its protection.[6]

4. An Outline of Construction Lien Law in Washington.

   Construction lien rights arise when a person or an entity begins to provide labor, professional services, materials, or equipment (“lienable work”) to improve the privately owned real property at the instance (directly or through an agent) of the property owner.  Lien rights, initially inchoate, attach to the improvement and (usually) to the property being improved.  These subjects are discussed in Chapter Two, “The Elements of a Construction Lien.”

   To develop inchoate lien rights into an enforceable lien, the lien claimant must perfect the lien by taking certain actions.  The first step (for some claimants) is to submit a pre-claim notice of lien rights.  The notice requirement varies depending on the kind of project and the proximity of the relationship between the lien claimant and the property owner.  Certain parties may be required to give notices even if no lien is claimed.  These subjects are discussed in Chapter Three, “Pre-Claim Notices.”

   The next step in perfecting a lien is to record a written claim of lien in the public property records of the county where the project is located.  This subject is discussed in Chapter Four, “Recording a Construction Lien Claim.”

   The final step in perfecting a lien is a civil action to foreclose the lien.  This action resolves the validity of the underlying claim, the validity of the lien, and the relative priority of the lien concerning other property interests.  If the claimant is successful, the court may order the liened property to be sold.  Some parties may have a right to redeem the property from the sale.  These subjects are discussed in Chapter Five, “Foreclosing a Construction Lien Claim.”

   Property owners and other interested parties have various potential defenses and other actions they can take in response to lien claims, including a summary proceeding to challenge a lien claim that is believed to be frivolous or excessive.  These subjects are discussed in Chapter Six, “Defending Against a Construction Lien Claim.”

   This book also contains a chapter describing another lien-like remedy applicable to private projects.  This is Chapter Seven, “The Stop Notice.”

   The final chapter covers statutes protecting persons providing labor, materials, and equipment on public projects, where normal liens are not allowed.  This is Chapter Eight, “Lien-Like Remedies on Public Projects.”

   Lien law is complex, and it interacts with contract law, agency law, tort law, bankruptcy law, and principles of equity.  The application of the law to each fact-specific case is obviously beyond the scope of this book.  The authors hope enough has been said both to lay down the general principles of lien law and to indicate at least some of the places where different kinds of legal considerations may apply.  Legal advice is recommended when applying the principles stated in this book.

   Please note that the analysis in this book is believed to be accurate on the publication date and may become inaccurate if the law is changed after publication by statutory amendment or by court decision.  Care should always be taken to confirm the current form of the statute and the latest case authorities.  Readers will note that some of the cases cited in this book were decided under earlier versions of the statute.  The authors believe that the principles expressed are still good law in Washington, but there is always a risk that revised statutory language may lead a court to change what was formerly settled law.

   Readers should also be aware that, although all 50 states have lien laws in one form or another, those laws vary substantially from one state to the next.  The principles of Washington law may not apply in other jurisdictions.

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[1] The term “mechanic” formerly meant a person who performed manual labor; now it usually means a person who repairs machinery. In either case, the term suggests, incorrectly, that most lien claimants are individuals. Most claimants today are business entities providing labor, professional services, materials, or equipment.

[2] See generally Samuel L. Phillips, A Treatise on the Law of Mechanics’ Liens on Real and Personal Property (1883); Scott Wolfe, Jr., A Short History of the Mechanics Lien (2019), https://www.levelset.com/blog/a-short-history-of-the-mechanic-lien/.

[3] See, e.g., Westinghouse Elec. Supply Co. v. Hawthorne, 21 Wash. 2d 74, 77, 150 P.2d 55 (1944).

[4] See, e.g., Dean v. McFarland, 81 Wash. 2d 215, 219-20, 500 P.2d 1244 (1972) (no lien right for contractor who carried away a demolished structure).

[5] See RCW 60.04.900.  No reported case has discussed whether provisions protective of owners or lenders should be liberally construed.

[6] See, e.g., Williams v. Athletic Field, Inc., 172 Wash. 2d 683, 696-97, 261 P.3d 109 (2011).