§11.3 - Procedural Requirements

• Jurisdiction: Washington

§11.3 PROCEDURAL REQUIREMENTS

This section discusses procedural requirements for notice and claim of lien.

(1) Notice to owner of right to claim lien

Under RCW 60.04.031, second and lower tier subcontractors, design professionals, and material and equipment suppliers who do not contract directly with the owner or the owner's common-law agent must provide a "Notice to Owner" in accordance with the statute. A lien may not be enforced unless the claimant has complied with the notice requirements of the statute. RCW 60.04.031(6).

Persons who contract directly with the owner or the owner's common-law agent are not required to provide a pre-claim notice. RCW 60.04.031(2)(a); CKP, Inc. v. GRS Constr. Co., 63 Wn.App. 601, 608-09, 821 P.2d 63 (1991), review denied, 120 Wn.2d 1010 (1992). However, as discussed below, a written disclosure pursuant to RCW 18.27.114 may be required.

An owner's actual knowledge of a claimant's involvement in a project will not excuse compliance with the pre-claim notice requirement. See Northlake Concrete Prods., Inc. v. Wylie, 34 Wn.App. 810, 663 P.2d 1380 (1983); McCombs Constr., Inc. v. Barnes, 32 Wn.App. 70, 645 P.2d 1131 (1982).

Notice of intent to claim a lien is not a prerequisite to establishing a lien for labor. RCW 60.04.031(2)(b); Pac. Erectors, Inc. v. Gall Landau Young Constr. Co., 62 Wn.App. 158, 813 P.2d 1243 (1991), review denied, 118 Wn.2d 1015 (1992); CKP, Inc., 63 Wn.App. 601.

Subcontractors who contract for the improvement of real property directly with the prime contractor are not required to give notice, except in the instance in which the project is for the repair, alteration, or remodeling of an existing owner-occupied single-family residence or an appurtenant garage. RCW 60.04.031(3).

The supplier of equipment is required to give a notice under RCW 60.04.031 that a lien may be claimed. The definition of "labor" in RCW 60.04.011(7) effectively overruled the holding in Neil F. Lampson Equipment Rental & Sales, Inc. v. West Pasco Water Systems, Inc., 68 Wn.2d 172, 412 P.2d 106 (1966), that furnishing equipment with an operator classifies the machinery as labor.

An example of the form of notice required by RCW 60.04.031 is provided as Form 11-1 on the CD accompanying this deskbook. The statute requires that the notice be in upper and lower case ten-point type.

The notice must be given to the owner or reputed owner by certified or registered mail, or by delivering or serving the notice personally upon the owner or reputed owner and obtaining evidence of delivery in the form of a receipt or other acknowledgment signed by the owner or reputed owner or an affidavit of service.

A notice sent by certified or registered mail to the property owner's correct residential address satisfies the requirements of due process and the statute. The potential lien claimant need not prove that the notice was actually received. Baker v. Altmayer, 70 Wn.App. 188, 191, 851 P.2d 1257, review denied, 122 Wn.2d 1024 (1993).

The notice required may be given at any time, but only protects the right to claim a lien for professional services, materials, or equipment supplied after a date that is 60 days prior to service of the notice.

In the case of new construction of a single family residence, the notice may be given at any time, but only protects the right to claim a lien for professional services, materials, or equipment supplied after a date that is 10 days prior to service of the notice.

Special rules apply to persons who furnish professional services, materials, or equipment (but not labor) in connection with the repair, alteration, or remodeling of an existing owner-occupied single family residence or appurtenant garage. On such projects, persons who do not contract directly with the owner-occupier or his or her common-law agent (for example, first tier subcontractors) are also required to give notice. Liens for professional services, materials, and equipment on owner-occupied remodeling projects may be satisfied only from amounts not yet paid to the prime contractor by the owner at the time the notice is received. "Received" is defined as actual receipt of the notice by personal service or registered or certified mail, or three days after mailing by registered or certified mail, excluding Saturdays, Sundays, or legal holidays. RCW 60.04.031(3)(b).

The "Notice to Owner" also must be given to the prime contractor if the prime contractor is in compliance with the requirements of RCW 19.27.095 (pertaining to building permits), RCW 60.04.230 (prime contractor must post, on jobs costing more than $5,000, a notice at the construction job site containing certain specified information), and RCW 60.04.261 (prime contractor must supply the information specified in RCW 19.27.095(2) immediately to any person who has contracted to supply materials, equipment, or professional services, or who is a subcontractor on the improvement, as soon as the identity and mailing address of such subcontractor, supplier, or professional is made known to the prime contractor).

A potential lien claimant need not provide notice to a prime contractor when the prime contractor has not complied with the statutory requirements, even though the potential lien claimant may have knowledge of the identity of the prime contractor. McKinstry Co. v. Aeronautical Machinists, Inc., 62 Wn.App. 442, 450, 814 P.2d 251 (1991), review denied, 118 Wn.2d 1018 (1992).

"Prime contractor" is defined in RCW 60.04.011(12) as follows:

"Prime contractor" includes all contractors, general contractors, and specialty contractors, as defined by chapter 18.27, or 19.28 RCW, or who are otherwise required to be registered or licensed by law, who contract directly with a property owner or their common law agent to assume primary responsibility for the creation of an improvement to real property, and includes property owners or their common law agents who are contractors, general contractors, or specialty contractors as defined in chapter 18.27 or 19.28 RCW, or who are otherwise required to be registered or licensed by law, who offer to sell their property without occupying or using the structures, projects, developments, or improvements for more than one year.

(2) Notice of furnishing professional services

A professional service provider who has performed services when (1) no improvement as defined in RCW 60.04.011(5)(a) or (b) has been...