§30.06 Equitable Liens

• Jurisdiction: Washington

§ 30.06 EQUITABLE LIENS

Washington courts have employed equitable liens as a specific means of adjusting property awards under certain circumstances.

Equitable liens do not apply to property generally. They must attach to a specific property on a specifically documented theory. Equitable liens have principally been applied to favor the community, and not in favor of the separate property interest of either of the parties. Most importantly, equitable liens are applied by Washington courts to assist a party in need of equity.

In re Marriage of Marshall, 86 Wn. App. 878, 881-82, 940 P.2d 283 (1997) (quoting WASHINGTON FAMILY LAW DESKBOOK § 38.6 at 38-20 (1989 & Supp. 1996).

An equitable lien is not applied in every case in which the elements required for an equitable lien exist. Finally, equitable liens do not create a property right, but only the potential right to an offset, which a court may use in fashioning an overall division of property and liabilities.

[1] Requirements for an Equitable Lien

Equitable lien cases in Washington generally arise when an individual asserts a community lien against claimed or proven separate property of the other party. Equitable lien cases arise in situations in which the following have enhanced the separate property of one spouse:

• undercompensated community labor;
• uncompensated community labor; or
• contributions of community funds or credit.

The court may also impress an equitable lien on community property in favor of one spouse's separate estate. See, e.g., Farrow v. Ostrom, 16 Wn.2d 547, 133 P.2d 974 (1943); In re Marriage of Sedlock, 69 Wn. App. 484, 849 P.2d 1243 (1993). However, a contribution of separate property to the acquisition or enhancement of community property is presumed to be a gift to the community. See Farrow, 16 Wn.2d at 555. This community property presumption weighs against imposition of an equitable lien on community property. See, e.g., Marriage of Marshall, 86 Wn. App. 878 (trial court's refusal to impose equitable lien in favor of wife's separate estate upheld).

When community funds or labor are used to enhance the separate property of a spouse, Washington courts may use equitable liens to increase the size of the other spouse's award of community property. There are several conditions to the imposition of an equitable lien:

• The claim for an equitable lien must be supported by direct evidence of a contribution to the property on which the lien is asserted. See Guye v. Guye, 63 Wash. 340, 352-53, 115 P. 731 (1911).
• The evidence must be more than an assertion or a claim. Some decisions have emphasized the importance of documentary evidence. Jones v. Davis, 15 Wn.2d 567, 131 P.2d 433 (1942). The evidence should be specific and supported by precise evidence as to the value of the

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