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Darren R. Krattli Eisenhower Carlson PLLC

Darren R. Krattli Eisenhower Carlson PLLC. Mechanics’ and Materialmen’s Liens: Start to Finish RCW 60.04. Main: (253) 572-4500 Direct: (253) 620-2537 1201 Pacific Ave, Suite 1200 Tacoma, Washington 98402. RCW 60.040.21 Any person furnishing: Labor, Professional Services,

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Darren R. Krattli Eisenhower Carlson PLLC

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  1. Darren R. KrattliEisenhower Carlson PLLC Mechanics’ and Materialmen’s Liens: Start to Finish RCW 60.04 Main: (253) 572-4500 Direct: (253) 620-2537 1201 Pacific Ave, Suite 1200 Tacoma, Washington 98402

  2. RCW 60.040.21 Any person furnishing: • Labor, • Professional Services, • Materials, • or Equipment for the improvement of real property shall have a lien upon the improvement for the contract price of the labor, services, materials, or equipment furnished at the insistence of the owner, or the agent or construction agent of the owner Contract Price = amount agreed upon by the contracting parties OR the customary and reasonable charge therefore Construction Agent = a registered or licensed contractor, subcontractor, architect, engineer, or other person having charge of any improvement to real property, who is deemed the agent of the owner for the limited purpose of establishing liens under 60.04 Subject of lien = land improved and the improvement Priority = as of commencement of work M&M Liens: What are they?

  3. M&M Liens: Notice Requirements • Basic Rule – must provide the owner notice in writing of the right to claim a lien • Prime Contractor – must also provide to the Prime Contractor if he complies with: • RCW 19.27.095 (permitting) • RCW 60.04.230 (jobsite notice) • RCW 60.04.261 (permit posting) RCW 60.04.031 Failure to comply = no lien Prime Contractor = contractor who contracts directly with the owner or the owner’s agent, and assumes primary responsibility for the creation of an improvement

  4. M&M Liens: Notice Methods • Timing – anytime, but only effective 60-days prior to sending (10 days if new SFR construction) • Method: • Certified or registered mail, or • Personal delivery, but need proof (signed acceptance / affidavit of service) RCW 60.04.031(1) Form: RCW 60.04.031(4)

  5. M&M Liens: Notice Exceptions • Exceptions: • 1) Deal directly with the owner / common law agent (non contractor) • 2) Labor only liens • 3) Deal directly with the Prime Contractor – BUT if non-visible work on existing owner-occupied SFR, must notify owner RCW 60.04.031(2) and (3) Prime Contractor Exception Notes: Non-visible = Professional services, and provision of materials or equipment Effective date – Notice to the owner is effective upon receipt (not retroactive) Lien limit – lien is limited to balance remaining due to the prime contractor

  6. M&M Liens: Notice Exceptions • Professional Services: • No improvement visible – can record notice • If not recorded, lien is junior to other interested parties without actual notice of the services • Form – RCW 60.04.031(5) RCW 60.04.031(5) Professional services = surveying, mapping, inspecting, testing, architectural, engineering, or other similar services

  7. M&M Liens: Claiming the Lien • Timing = within 90 days of completion of work • Work in furtherance of original contract can extend completion date (change orders, warranty claims) • FILE EARLY – untimely is ineffective • Form = RCW 60.04.021(2) • Must be signed by the claimant or someone authorized to act on his behalf • Must state that the claim has been read • Under penalty of perjury • Method = Record with county auditor RCW 60.04.071 Timing – by structure if residential improvement Details required: Claimant ID Date work began/ended ID of debtor ID of owner Property description (address is OK, but COMPLETE legal description is best) Amount due (by parcel)

  8. M&M Liens: Enforcement • Timing – Must commence action to foreclose within 8 months of recording • Venue – Superior court of relevant county • Foreclosure suit – similar to judicial mortgage foreclosure: • Determine debt due • Determine lien priority • Sheriff’s sale • Excess proceeds go to junior liens RCW 60.04.141 RCW 60.04.181(3) – Only potential award of attorney’s fees, so be sure to include fee provision in contracts

  9. M&M Liens: Risks • Release – Must release lien upon payment and upon demand • Failure to release = attorney’s fees and damages if delay is unjustified • Frivolous claim = lien claim made without reasonable cause OR excessive • Can result in attorney’s fee award RCW 60.04.071 RCW 60.04.081

  10. M&M Liens: Other issues • Retaliation– threats to withhold future contracts made by a contractor to discourage lien filings = Consumer Protection Act Violation – attorney’s fees, treble damages, etc. • Assignable – You can sell your rights • Withholding: • Owner can deduct lien amounts from payments to prime contractor • Notice to Lender – Can force lender to withhold amount due from borrower in future loan draws • Bond– owner can bond around lien claim, forcing contractor to foreclose to receive recovery RCW 60.04.035 RCW60.04.121 RCW 60.04.151 RCW 60.04.221 RCW 60.04.161

  11. Questions?

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