Chapter Four: Recording a Construction Lien Claim

1. Introduction.

   Previous chapters have described the elements of a construction lien and the initial steps that some claimants must take to perfect their lien rights.  This chapter addresses a requirement that all claimants must satisfy, recording a claim of lien.  The following sections cover the following topics:

   • Section 2:  Where and How to File a Claim of Lien.
   • Section 3:  When to File and Serve a Claim of Lien.
   • Section 4:  The Form and Content of a Claim of Lien.
   • Section 5:  Amending and Releasing a Claim of Lien.
   • Section 6:  Lien Release Bonds.

   In determining whether a claim of lien has been properly recorded, courts apply a mixture of “strict construction” and “lenient construction” rules, as explained further below.

2. Where and How to File a Claim of Lien.

   Any person seeking to assert lien rights on a private project must file for recording, in the county where the subject property is located, a notice of claim of lien not later than 90 days after the claimant has ceased to perform work.[1]  If the property lies in two counties, it would be safest to file in both counties because the purpose of the filing is to give notice to others with actual or potential interests in the same property.

   Filing “in the county” means filing with the county official or department responsible for maintaining real estate records, usually called the auditor or recorder.  This official records lien claim notices in the same manner as deeds and other instruments of title are recorded.[2]  The usual way to file a lien claim is to send a messenger to the appropriate office with the original lien claim and a copy.  The officer accepts the original for filing and stamps the copy as proof of filing.  Practices may vary, however, and it is safest to consult with the appropriate office ahead of time to identify the most efficient way to file the claim, pay the recording fee, and get written proof of filing.  Some counties may accept lien claims for recording by electronic means.

3. When to File and Serve a Claim of Lien.

   The notice of claim of lien must be filed not later than 90 days after the claimant has ceased to “furnish labor, professional services, materials, or equipment or the last date on which employee benefit contributions were due.”[3]  It has been held that this deadline is strictly enforced,[4] though elements of leniency figure in the calculation.

   The filing period is 90 full days.[5]  If the last day of the 90-day filing period falls on a Saturday, Sunday, or legal holiday, then the period is extended to the next business day.[6]  Before the time expires, the claimant must “file for recording,” i.e., deliver the claim document to the appropriate official.  The date on which the official records the document should not matter.  However, if the official rejects the notice because of a format error, a new filing will be required and must itself be timely.  For this reason, it is risky to wait until the 90th day to record a lien claim.

   The lien claim filing period begins to run when the lien claimant ceases to furnish labor, professional services, materials, or equipment either personally (in the case of an individual claimant) or through the efforts of others, who may be employees, subcontractors, suppliers, or material suppliers.  In other words, if contractor X hires subcontractor Y to perform a portion of X’s contracted work, the efforts of Y count when determining the date on which X ceased to provide labor, professional services, materials, or equipment.  On the other hand, if subcontractor Y leaves the project before all the work is done, later work by contractor X or other subcontractors will not extend the filing deadline for Y.

   The date triggering the 90 days is easy to determine if the claimant works continuously and then leaves the project when her work is completed.  But on some projects, the claimant may complete the bulk of the work and then complete minor items days or weeks later.  Or the owner may suspend the work for some time and then terminate it.  The following principles may help address the many possible fact patterns:

   • If the claimant provided lienable work, the lien claim filing statute will be liberally construed to protect her.[7]
   • If work is done or materials furnished at the request of the owner or owner’s construction agent to complete the original contract or to remedy some defect in the work that prevents final acceptance, then the time for filing runs from that last work.[8]
   • Work done or materials furnished under a new and independent contract, entered into after the original contract is completed, cannot be tacked on to the original contract to expand the time for filing a claim of lien under the original contract.[9]
   • However, if a lien claimant furnishes material or labor to a contractor who has two separate contracts with the owner for the same project, the lien claimant need not give two separate notices of lien claim unless she has actual or constructive knowledge that she is working under two separate contracts.[10]
   • Work performed for the sole purpose of prolonging or renewing the right to file a claim of lien is not counted in determining the time for filing.[11]
   • Work performed after a contract has been completed in response to a warranty claim does not extend the time for filing a claim of lien.[12]
   • By statute, if work is performed on separate residential units, then the time for filing claims of lien against each unit commences to run when work is completed on that unit.[13]

   Following these principles, it has been held that even a small amount of remedial work or “punch list” some days or weeks after most of the work has been completed will extend the time for filing a claim of lien.[14]  If work is performed under a single contract, it does not matter that the contract has been amended to include additional work.[15]  Washington courts have sometimes found that work was performed solely to extend the filing period, but only where the evidence was clear.[16]  Washington courts have also been lenient in finding that if a claimant works under two separate contracts with the same party on the same project, the two contracts may be considered as one in determining the deadline for filing lien claims.[17]

   After filing a lien claim, the claimant “shall” provide a copy of the claim to the “owner or reputed owner” by certified or registered mail or by personal service within 14 days of the time the claim of lien is filed for recording.[18]  The standard for identifying the “owner or reputed owner” is not strict; in fact, the statute gives the option of stating that the owner is unknown.

   Failure to provide a copy of the claim to the “owner or reputed owner” does not render the lien claim invalid, but it results in a forfeiture of the claimant’s right to attorneys’ fees and costs against the owner in a lien foreclosure action.[19]  This can be a significant disadvantage in a contested lien case.  If the claimant copies her claim to someone who is the “reputed” but not the real owner, the right to fees is not lost.[20]  What happens if the claimant copies no one with her claim because she does not know who the owner is? No published Washington case has ruled on this question, but the statutory language suggests that the right to fees would be lost.  Given that the property owner’s address will be posted on nearly every project,[21] a lien claimant should have little trouble identifying at least the “reputed owner.”

4. The Form and Content of a Claim of Lien.

   The statute provides a form of lien claim and states that a claim of lien “substantially in the following form shall be sufficient.”[22]  It has been held that the use of this form is sufficient compliance with the statute, even though the form arguably conflicts with the requirement, stated in the same statute, that lien claims be “acknowledged.”[23]

   The statutory form requires information identifying the claimant, the person indebted to the claimant (i.e., the person who ordered the claimant’s work, who might be different from the owner of the underlying property), the property (which can be identified by any means “reasonably calculated to identify, for a person familiar with the area, the location of the real property to be charged with the lien”),” and the dates when work was performed.  The work dates are important because they determine whether the lien claim filing is timely and, if it is, the date on which the lien is deemed to attach to the property for priority purposes.

   The lien claim form requires the claimant to state, “the principal amount for which the lien is claimed.”  This is the amount due to the claimant on the day the lien claim is filed.  The statute does not suggest that any detailed statement is required; the total due should be sufficient.  The principal amount may be amended as additional sums become due.[24]  Anticipated fees and interest should not be included in the lien claim, though they may be subsequently awarded.

   The lien statute elsewhere provides that, if a claim of lien is recorded against two separate pieces of property owned by the same person(s) who contracted for the work for which a lien is claimed, then the notice of lien claim should designate the amount due on each piece of property, otherwise the lien is subordinated to other liens that do attach to the parcels individually.[25]  For example, if a contractor contracts directly with the owner(s) for work on two adjoining parcels of property, she should allocate her lien claim between the two parcels.  By contrast, a subcontractor who has not contracted directly with the owner(s) should not be subject to this requirement.  This makes sense, because the subcontractor may not know the owner or the legal description of the property, as reflected in the loose requirements of the lien notice form.

5. Amending and Releasing a Claim of Lien.

   There are many reasons why a lien claimant may want to amend her claim notice form.  She may discover more accurate information about the property owner or the property description.  She may want to amend the amount due because of partial payment or because of continuing work.  She may conclude that other information on the form was not accurate.

   Lien claimants are free to file a new lien claim notice or to amend an existing notice within the 90 days following the end of their work, even if more than eight months have passed since an earlier notice was filed.[26]

   After the 90-day period has run, there is authority that a lien claim may still be amended, but not to cure invalidity, where invalidity means the failure to substantially comply with the filing statute.[27]  However, what counts as invalidity needs to be assessed in light of the rule that substantial compliance with the lien claim notice statute is sufficient.[28]  It appears that omitting a mandated part of the lien notice (e.g., name of the claimant, identification of the property, claimant’s signature, or claimant’s sworn statement) will render a lien claim invalid, but other omissions or errors that do not substantially depart from the statutory requirements will not.[29]

   Once a timely lien foreclosure lawsuit has been filed, the statute provides that lien claims may be amended in the same way that pleadings may be amended.[30]  An important consideration is whether the amendment will adversely affect third parties.[31]

   Lien rights may be released, in whole or in part, at any time after they have arisen.[32]  If the debt underlying a lien is paid, the claimant should promptly execute and deliver a lien release to the payor.[33]  The payor may recover fees and damages if the release is unjustifiably delayed.[34]  The statute does not provide a form of release.  A release should refer to the lien claim by recording number and date so that a search of title records will discover it.

   The lien claimant should consider providing a partial release if a substantial payment is received.  If the original lien claim is for $30,000 and $15,000 is paid, the claimant may be vulnerable to the charge that her lien claim, which is twice the amount now claimed to be due, is excessive in amount.[35]

   What if the lien claimant fails or refuses to file a lien release in the event the claimant’s lien expires by operation of law for failure to file timely a lien foreclosure action (i.e., within eight months from the lien filing date)?  A problem arises when title examiners and other third parties interested in sales, transfer, or conveyance transactions involving the property may not know whether the lien claim is expired merely by examining the deed records, in the absence of a filed lien release.  This confusion may frustrate or prevent the closings of such transactions.  A lien claimant’s expired lien claim may not give rise to a slander of title action because the lien claimant could defend against such claim by noting the lien’s expiration, thus likely defeating the element of “intent” to support the slander claim.  There is little legal authority directly addressing an owner’s potential remedies, but an unpublished decision from Division One of the Court of Appeals provides some guidance.  The court approved of an owner seeking “equitable and declaratory relief” to remove the “potential cloud on title” created by the expired lien.[36]  As such, commencing a lawsuit to quiet title, compel delivery of a release, and/or seek a declaration that the lien is expired and no longer binds the property is a valid avenue of relief.  A lien claimant whose lien is expired therefore would be wise to record a lien release upon expiration of the lien, or at least upon demand from the owner after expiration, or risk potentially costly legal action.

6. Lien Release Bonds.

   When a lien claim has been recorded against real property, Washington law permits a bond to be recorded that frees the property from the encumbrance of the lien.  The lien security then shifts from the property to the bond.[37]

   Nearly anyone with an interest in the encumbered real property may record a lien release bond:  the owner, a contractor, a subcontractor, a lender, or another lien claimant who disputes the correctness or validity of the claim of the lien.  The bond may be recorded before or after a lawsuit is commenced to foreclose the lien.

   The surety must be authorized to issue surety bonds in the State of Washington, and it must be listed by the federal Department of the Treasury as authorized to issue bonds on federal projects in amounts at least equal to the lien release bond.

   The bond must identify the lien claim.  It may do so by attaching a copy of the lien claim or by referring to the lien recording number; a less formal reference may be acceptable but may also give rise to a dispute.[38]

   The bond must also identify the encumbered property.  If the lien claim is attached, it will contain a description of the property.  If the lien claim is not attached, the bond should copy the property description in the lien claim.

   The bond needs to state clearly that its purpose is to secure the lien claim.  The statute suggests that the following language will be sufficient:

   The condition of this Bond shall be to guarantee payment of any judgment upon the Claim of Lien identified above in favor of the lien claimant entered in any action to recover the amount claimed in the Claim of Lien, or on the claim asserted in the Claim of Lien.

   The bond amount should be calculated as follows:

   If the lien claim is $10,000 or less, the bond amount must be “equal to” $5,000 or twice the lien claim, whichever is greater.

   If the lien claim is more than $10,000, the bond amount must be “equal to or greater than” 1.5 times the lien claim.[39]

   If there are multiple lien claimants, a party may record multiple bonds.  Each bond may apply to only one lien claimant, though a single bond may cover multiple lien claims asserted by the same claimant, in which case the bond amount should be calculated using the sum of the lien claims.  A party may choose to record bonds concerning some, but not all, of the lien claims on a particular property.  The bond must be recorded in the same place that the claim of lien was recorded.

   When a lien release bond is recorded, the real property described in the claim of the lien is automatically released from the encumbrance of the lien and any action based on the lien claim.  The lien claimant has no right to object to a bond that meets the statutory requirements.  She may continue to pursue her claim, but that claim can no longer affect the real property.

   Even after a lien release bond has been recorded, the eight-month deadline stated in RCW 60.04.141 remains in effect.  If no lawsuit is commenced within eight months after the lien claim is recorded, then the surety is discharged from liability under the bond.

   Even after a lien release bond has been recorded, issues of lien priority may continue to be relevant.  For example, a construction lender may record a bond and still argue that its deed of trust is before the interest of the lien claimant.  If the value of the property is insufficient to satisfy both the lender and the lien claimant, and if the deed of trust is before the lien claim, the lien claimant takes nothing from the bond, just as she would have taken nothing in a contested lien foreclosure suit.[40]

   If issues of lien priority are resolved in connection with a claim against a lien release bond, the prevailing party should be entitled to an award of fees under RCW 60.04.181.[41]

   The statute does not preclude the parties from agreeing on other ways to secure lien claims and release real property from the encumbrance of a lien.  But such other methods must arise from the agreement, not from the operation of the statute.

   Recording a bond (or taking similar measures by agreement) can benefit both the lien claimant and others with interests in the property.  The lien claimant who proves her claim has access to an asset (the bond) without any need for a sale or threatened sale of real property.  Others with interests in the property can remove the lien encumbrance, which may be of value if the property is to be sold or refinanced.

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[1] RCW 60.04.091.

[2] RCW 60.04.111.

[3] RCW 60.04.091.

[4] See Diversified Wood Recycling, Inc. v. Johnson, 161 Wash. App. 859, 867, 251 P.3d 293 (2011).

[5] See Seattle Lumber Co. v. Sweeney, 33 Wash. 691, 697, 74 P. 1001 (1904).

[6] RCW 1.12.040.

[7] See Williams v. Athletic Field, Inc., 172 Wash. 2d 683, 697, 261 P.3d 109 (2011).

[8] See Kirk v. Rohan, 29 Wash. 2d 432, 436-37, 187 P.2d 607 (1947). The request of the owner may be made in the original contract and need not be specific to the final work performed. See Diversified Wood Recycling, Inc., 161 Wash. App. at 870 (contractor’s removal of stumps and slash was a part of the underlying contract; no explicit request for those services on that day was necessary to extend the 90-day timeframe for the contractor to file a lien); cf. Intermountain Elec., Inc. v. G-A-T Bros. Constr., Inc., 115 Wash. App. 384, 62 P.3d 548 (2003) (claimant left trailer on the job site in case suspended work would resume; trailer was not onsite at request of owner and did not constitute “equipment furnished” that would extend the time to file a lien claim).

[9] See Kirk, 29 Wash. 2d at 436.

[10] See Trane Co. v. Brown-Johnston, Inc., 48 Wash. App. 511, 515, 739 P.2d 737 (1987).

[11] See Kirk, 29 Wash. 2d at 436-37.

[12] See Wells v. Scott, 75 Wash. 2d 922, 454 P.2d 378 (1969) (warranty work, though required by original agreement, did not extend time to file claim of lien for original construction); Brashear Electric, Inc. v. Norcal Props., LLC, 16 Wash. App. 2d 741, 749, 482 P.3d 955 (2021) (same). An alternative basis for this conclusion may be that warranty/maintenance work does not count as an “improvement” to real property. See supra, Chapter 2, Section 3, The Improvement of Real Property.

[13] RCW 60.04.101.

[14] See Kirk, 29 Wash. 2d 432 (claimant corrected flooding problem two months after garage was built); Friis v. Brown, 37 Wash. 2d 457, 224 P.2d 330 (1950) (claimant started furnace three months after furnace had been installed); Am. Sheet Metal Works, Inc. v. Haynes, 67 Wash. 2d 153, 407 P.2d 429 (1965) (claimant installed controls several weeks after elevator had been installed).

[15] See Scott’s Excavating Vancouver, LLC v. Winlock Props., LLC, 176 Wash. App. 335, 308 P.3d 791 (2013) (five amendments were all part of a single engineering contract).

[16] See Swensson v. Carlton, 17 Wash. 2d 396, 135 P.2d 450 (1943) (claimant admitted that he performed work for the purpose of extending the deadline); Petro Paint Mfg. Co. v. Taylor, 147 Wash. 158, 265 P. 155 (1928) (material delivery was insignificant and not actually used in construction; the person ordering the materials admitted that his purpose was to obtain further time to pay the claimant).

[17] In Powell v. Kier, 44 Wash. 2d 174, 265 P.2d 1059 (1954), the claimant was hired to install mechanical plumbing equipment on the ground floor of a building. The building plan was changed to include a second floor and claimant was hired to install more plumbing equipment. The court held that both parts of the work should be considered together for the purpose of computing the deadline for filing a claim of lien. But cf. Anderson v. Taylor, 55 Wash. 2d 215, 347 P.2d 536 (1959). In Anderson, the claimant worked first for the contractor and then, after contractor defaulted, under a second contract directly for the owner. 55 Wash. 2d at 215-16. The court held that work under the second contract did not extend the time for filing a lien claim under the first contract. Id. at 218; see also King Equip. Co. v. R. N. & L. Corp., 1 Wash. App. 487, 462 P.2d 973 (1969) (second rental agreement, for a different piece of equipment, did not extend the time to file a claim of lien based on the first rental agreement).

[18] RCW 60.04.091(2).

[19] Id.

[20] See Diversified Wood Recycling, Inc., 161 Wash. App. 859 (affirming award of fees under lien statute despite allegation that foreclosure action named only the reputed owner).

[21] RCW 60.04.230.

[22] RCW 60.04.091(2).

[23] See Williams, 172 Wash. 2d at 692-98. The Williams court held that, once a lien claimant shows that she performed lienable work, the requirements of RCW 60.04.091 will be liberally construed to protect her.

[24] See supra, Section 5, Amending and Releasing a Claim of Lien.

[25] RCW 60.04.131.

[26] See Geo Exch. Sys., LLC v. Cam, 115 Wash. App. 625, 632-33, 65 P.3d 11 (2003); Shelcon Constr. Grp., LLC v. Haymond, 187 Wash. App. 878, 899, 351 P.3d 895 (2015).

[27] See Lumberman’s of Wash., Inc. v. Barnhardt, 89 Wash. App. 283, 289-91, 949 P.2d 382 (1997) (claimant admitted it failed to substantially comply; court held that resulting invalidity could not be cured by amendment after 90-day period had expired).

[28] See Williams, 172 Wash. 2d at 696-97 (overruling Lumberman’s of Washington, on the issue of substantial compliance).

[29] See id. at 697-98 (distinguishing Lumberman’s of Washington on the facts but not disapproving its result). Some limitation on a claimant’s ability to amend a defective lien seems required to enforce the statement in RCW 60.04.091(2) that the 90-day period is a “period of limitation.”

[30] RCW 60.04.091(2); cf. Superior Court Civil Rule 15. See also Bremerton Concrete Prods. Co. v. Miller, 49 Wash. App. 806, 812, 745 P.2d 1338 (1987) (trial court properly allowed amendment to add additional property to lien claim).

[31] See Structurals Nw., Ltd. v. Fifth & Park Place, Inc., 33 Wash. App. 710, 658 P.2d 679 (1983) (claimant was allowed to amend lien claim to expand property description; claimant agreed to subordinate its lien to third-party interests in the previously unlisted parcels); CKP, Inc. v. GRS Constr. Co., 63 Wash. App. 601, 610, 821 P.2d 63 (1991) (third parties were not prejudiced by amended lien because original claim of lien included notice that the amount claimed could increase upon further calculation); Lumber Mart Co. v. Buchanan, 69 Wash. 2d 658, 419 P.2d 1002 (1966) (trial court’s grant of lien amendment disapproved because interests of third parties were not resolved).

[32] For more on release and waiver of lien rights, see infra, Chapter 6, Section 4, Lien Waiver, Release, and Modification.

[33] It is common for lien claimants to themselves record a release upon payment, but the statute requires only delivery of a signed release to the payor, apparently with the expectation that the payor will record it.

[34] RCW 60.04.071.

[35] See infra, Chapter 6, Section 5, Challenging a Frivolous Lien Claim (on challenges to “clearly excessive” lien claims).

[36] 2400 Elliott, LLC v. VP Elite Constr., LLC, 30 Wash. App. 2d 1006, 2024 WL 913847, at *3 (2024) (unpublished), review denied, No. 103009-6, 2024 WL 4039833 (Wash. Sep. 4, 2024).

[37] RCW 60.04.161; DBM Consulting Eng’rs, Inc. v. U.S. Fid. & Guar. Co., 142 Wash. App. 35, 42, 170 P.3d 592 (2007) (bond “releases the property from the lien, but the lien is then secured by the bond”).

[38] See Skilcraft Fiberglass, Inc. v. Boeing Co., 72 Wash. App. 40, 863 P.2d 573 (1993), abrogated by Morin v. Burris, 160 Wash. 2d 745, 161 P.3d 956 (2007). Although former RCW 60.04.115 (repealed 1992) applied to Skilcraft Fiberglass, Inc., the court noted that the result would be the same under RCW 60.04.161.

[39] RCW 60.04.161. If the lien claim is $10,000 or less, there is no good reason to reject a bond that is greater than the statutory minimum. Possibly the drafters simply wished to avoid using the word “greater” twice in the first clause.

[40] See Olson Eng’g, Inc. v. KeyBank Nat. Ass’n, 171 Wash. App. 57, 286 P.3d 390 (2012).

[41] Fees were awarded in Olson Engineering. 171 Wash. App. at 81.