§11.2 - Nature of Lien

• Jurisdiction: Washington

§11.2 NATURE OF LIEN

A lien under Chapter 60.04 RCW is the right to have real property sold at public auction to satisfy a contractual obligation for labor, professional services, materials, or equipment.

(1) Lienable activity

Mechanics' and materialmen's liens are created by RCW 60.04.021, which provides as follows:

Except as provided in RCW 60.04.031, 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 labor, professional services, materials, or equipment furnished at the instance of the owner, or the agent or construction agent of the owner.

The statutory definitions relevant to this section are set forth at RCW 60.04.011:

(2) "Contract price" means the amount agreed upon by the contracting parties, or if no amount is agreed upon, then the customary and reasonable charge therefor.

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(4) "Furnishing labor, professional services, materials, or equipment" means the performance of any labor or professional services, the contribution owed to any employee benefit plan on account of any labor, the provision of any supplies or materials, and the renting, leasing, or otherwise supplying of equipment for the improvement of real property.

(5) "Improvement" means: (a) Constructing, altering, repairing, remodeling, demolishing, clearing, grading, or filling in, of, to, or upon any real property or street or road in front of or adjoining the same; (b) planting of trees, vines, shrubs, plants, hedges, or lawns, or providing other landscaping materials on any real property; and (c) providing professional services upon real property or in preparation for or in conjunction with the intended activities in (a) or (b) of this subsection.

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(7) "Labor" means exertion of the powers of body or mind performed at the site for compensation. "Labor" includes amounts due and owed to any employee benefit plan on account of such labor performed.

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(13) "Professional services" means 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.

Lien rights are not extended to benefit those who do not clearly come within the terms of the statute. Dean v. McFarland, 81 Wn.2d 215, 219-20, 500 P.2d 1244 (1972). The burden of establishing a lien rests upon the person claiming it. Westinghouse Elec. Supply Co. v. Hawthorne, 21 Wn.2d 74, 77-78, 150 P.2d 55 (1944). However, once it has been determined that a person comes within the operation of the lien statute, the statute will be applied liberally to such person. Northlake Concrete Prods., Inc. v. Wylie, 34 Wn.App. 810, 818, 663 P.2d 1380 (1983).

Although RCW 60.04.021 contemplates that material and equipment delivered to the job site are to be for "the improvement of real property," a lien may arise even though such material and equipment are not actually used. Portland Elec. & Plumbing Co. v. Dobler, 36 Wn.App. 114, 117-18, 672 P.2d 103 (1983). The Portland Electric court pointed out that the lien "embraces material which either actually has been incorporated into and becomes a part of the building or has been delivered upon the site for incorporation into such building." The court distinguished Kellison v. Godfrey, 154 Wash. 219, 281 P. 733 (1929), in which materials were delivered to a house that had already been completed; these materials thus could neither be incorporated into the building nor furnished for use in its construction. In TPST Soil Recyclers of Washington, Inc. v. W.F. Anderson Construction, Inc., 91 Wn.App. 297, 302, 957 P.2d 265 (1998), the court held that the removal, treatment, and disposal of contaminated soil from real property was not an "improvement" under RCW 60.04.011(5) because it was not done as part of an "overall plan to improve the property." However, in Henifin Construction v. Keystone Construction, 136 Wn.App. 268, 275, 145 P.3d 402 (2006), the court held that the claimant was entitled to a lien for removing wet soil and replacing it with new material to create a stable foundation.

The "materials" for which a lien arises under RCW 60.04.021 must be something that goes or is intended to go into and become a part of the finished product. Material does not include food and provisions, Armour & Co. v. W. Constr. Co., 36 Wash. 529...