Chapter Six: Defending Against a Construction Lien Claim

1. Introduction.

   The foregoing chapters have focused on the lien claimant who is seeking to establish, record, and foreclose a construction lien.  This chapter focuses on persons defending against a construction lien claim.  In particular:

   • Section 2:  Defenses to the Underlying Debt.
   • Section 3:  Defenses to Lien Validity.
   • Section 4:  Lien Waiver, Release, and Modification.
   • Section 5:  Challenging a Frivolous Lien Claim.
   • Section 6:  How Owners Can Protect Themselves Against Liens.
2. Defenses to the Underlying Debt.

   A construction lien secures the collection of a debt.  If no debt exists, there is nothing to secure.  Accordingly, a successful challenge to the underlying debt will render the lien ineffective.  Defenses to the debt are typically asserted by the person alleged by the lien claimant to owe the debt.  This person may be the property owner or the owner’s “construction agent” (e.g., a prime contractor).

   Challenges to a claimed debt depend on the facts of each particular case.  This subject is not strictly part of lien law, but the following common defenses should be considered, among others:

   • The claimant is not registered as a contractor (or architect), and therefore may not sue for compensation.[1]
   • The claimant has waived her claim because she failed to satisfy contractual claim notice requirements.[2]
   • The claimant has been paid all amounts due.[3]
   • Any amount owed to the claimant must be offset by amounts owed by the claimant.
   • The statute of limitations has expired for enforcing the alleged debt.
3. Defenses to Lien Validity.

   Defenses to lien validity are independent of defenses to the underlying debt; they may be asserted to block the lien remedy even if the claim of debt has merit.  The lien defenses mirror the elements of the lien claimant’s case, so the review of prior sections of this book will help formulate the defenses.  Which elements of a lien claim can be challenged will depend on the facts of each particular case, but the following should be considered:

   • The claimant’s work did not constitute an “improvement” as required by RCW 60.04.021.[4]
   • The claimant’s work was not performed at the instance of the owner or the owner’s common law or construction agent as required by RCW 60.04.021.[5]
   • The claimant did not give a pre-claim notice as required by RCW 60.04.031.[6]
   • The claimant did not give another required statutory notice.[7]
   • The property identified by the claimant is not subject to liens because it is publicly owned.
   • The property identified by the claimant is not subject to liens because of the right of the homestead.[8]
   • The property identified by the claimant is not subject to a lien because the allegedly unpaid work was not performed on that property.[9]
   • The property identified by the claimant is not subject to the lien because a lien release bond has been recorded.[10]
   • The asserted lien is subordinate to other interests.[11]
   • The lien claimant has waived or modified her lien rights.[12]
   • The lien claim was recorded more than 90 days after the claimant ceased to furnish labor, professional services, materials, or equipment, or the last date on which employee benefit contributions were due.[13]
   • The recorded lien claim was invalid because it did not meet the form requirements of RCW 60.04.091.[14]
   • The lien claim is invalid because no foreclosure action was filed within eight months after the lien claim was recorded.[15]
   • The lien claim is invalid because the lien claimant did not serve the owner within 90 days of filing the foreclosure action.[16]

   Many of these defenses will involve disputes of fact that may not be resolved by motion.  If the facts and law are clear, a defendant may be able to challenge the lien claim as frivolous, as explained in Section 5, Challenging a Frivolous Lien Claim, below.

4. Lien Waiver, Release, and Modification.

   Lien claimants are favored in the law and lien remedies are liberally construed.[17]  Nevertheless, a potential lien claimant can waive, release, and modify her lien rights, and such actions may support defenses to a claim of lien.

   1. Lien Waiver and Release.

      Waiver and release are closely related concepts.  Technically, the waiver is an equitable principle that gives effect to a person’s intentional relinquishment of a known right, either through positive action or by failing to assert available remedies.[18]  Waiver occurs unilaterally, without consideration.[19]  Release relates to the law of contracts and gives effect to an intentional relinquishment of rights in exchange for consideration.[20]  In examining the cases in this area, it is sometimes important to distinguish waiver from release.

      Waiver or release of lien rights is not to be presumed;  any waiver or release must be established by evidence that is clear, certain, and unequivocal.[21]  Such evidence may consist of an express relinquishment of rights, written or oral.[22]  The evidence of waiver or release may also consist of conduct “inconsistent with any other intention than to waive.”[23]  Failure to satisfy lien statute requirements for maintaining a lien is conclusive evidence of waiver.[24]

      It has been held (in Oregon) that an agreement to take a mortgage to secure payment for construction work on the mortgaged property is a waiver of a construction lien because a mortgage is regarded, as a matter of law, as inconsistent with the right to a lien.[25]  By contrast, an agreement to accept a promissory note or to extend credit is not in itself proof of a waiver or release.[26]  An agreement to arbitrate claims arising from a construction project is not in itself proof of a waiver or release.[27]

      Leaving aside questions of proof, what are the situations in which a (potential) lien claimant can, or cannot, waive or release her lien rights? The Washington lien statute does not fully resolve this question.  The statute does mandate the release of a lien upon payment of the amount due.[28]  The statute also presumes that, once a lien claim has been recorded, it is subject to release (“discharge”) in exchange for a promissory note that expressly provides for release.[29]  In general, parties are free to enter into agreements that result in the “release of real property from a claim of lien.”[30]  Thus, it appears clear that, once a lien claim has been recorded, it may be freely waived or released by the claimant, though a court will insist on clear evidence of waiver or release.

      It is also well established that, even before a lien claim has been recorded, a lien claimant may release her lien rights incrementally during a construction project.  This is typically accomplished by “partial lien releases” (also called “partial lien waivers”), which are agreements signed by the lien claimant to relinquish lien rights (to some stated extent) in exchange for progress payments.  Sometimes a contractor submits a “conditional lien release” before a payment and then an “unconditional lien release” once payment has been made.

      Lien release forms vary in their terms and effect.  Some are little more than receipts for money paid; others release all lien rights and underlying claims for payment concerning any work done during stated time periods.[31]  It is prudent to examine the terms of any proposed lien release and to raise questions if a contract contains an open-ended term like “monthly invoices shall include lien releases.”[32]

      Thus, it appears that lien rights may be freely waived or released even before a lien claim is recorded.  But can lien rights be waived or released prospectively before work begins that creates the lien rights? Technically, the answer regarding waiver is no:  a person cannot waive a substantive statutory right before that right exists; accordingly, such waivers are void.[33]  Because lien rights are substantive statutory rights, they cannot be waived (unilaterally, without consideration) before they have arisen.

      Can lien rights be released (for consideration) before the work begins? Suppose a construction contract contains the following provision: “Contractor agrees not to assert any rights against the project property under Chapter 60.04 RCW.”  Would such a provision be enforced? The lien statute does not resolve this question, nor does any published Washington case.  The following considerations are relevant:

      • The lien statute provides that acts of coercion, including threats to withhold future contracts made to discourage a person from submitting a pre-claim notice or from recording a claim of lien, are unfair and deceptive acts.[34] This statute does not apply to prospective lien releases but, even if it does, it seems to say that only “coerced” lien releases are ineffective.  The statute does express a policy of protecting potential lien claimants at a very early stage, even before they file a pre-claim notice.
      • The common law rule is that prospective lien releases are enforceable.[35] At least one older federal court case in Washington seems to have assumed that prospective lien waivers could be effective.[36]
      • As explained further below, an agreement to subordinate lien rights to (usually) a mortgage interest is enforceable, even if made before the lien rights have arisen. If this very important lien right (priority) can be released before it arises, it would seem reasonable that other lien rights can also be released.
      • A growing number of states have restricted lien releases by statute, suggesting that such restrictions, if they exist, must be based on legislation rather than arising from common law.[37]

      The above considerations suggest that a prospective lien release would be enforced in Washington, though the proof would have to be clear and any element of coercion would raise a risk of liability under RCW 60.04.035.  Given the lack of clear authority, however, the effectiveness of a prospective release is not assured.  The safest course might be to pattern a proposed lien release on forms that have proved effective in disclaiming implied warranties.[38]

      It has been held in other jurisdictions that a lien waiver clause agreed to by a prime contractor can bind the prime’s subcontractors and suppliers through a “flow-down” clause.[39]  Whether a Washington court would allow this will depend on the specific facts of the case and to what extent the “flow-down” clause is valid and enforceable.

      In any case, there are limits to any waiver or release of lien rights.  Only those provisions in the lien statute that create rights can be waived.  For example, RCW 60.04.021 provides that persons furnishing labor to improve private property “shall have a lien upon the improvement.”  This right can be waived.  By contrast, RCW 60.04.091 provides that lien claims must be recorded no more than 90 days after the claimant has ceased to perform work.  This provision does not create lien rights; it limits the lien claimant’s exercise of her rights.  Thus, the time limit in RCW 60.04.091 (and other procedural aspects of the lien statute) probably cannot be waived, released, or varied by agreement.[40]

      Because lien rights are quasi-in rem, they affect the property.  A lien waiver or release may be used as a defense by anyone with an interest in the property.[41]

   2. Lien Modification.

      A lien claimant may modify her lien rights by agreement, without completely waiving them.  The most common instance is a subordination agreement.  A contractor may begin work before the property owner closes his construction loan.  Before granting the loan, the lender may insist that the security of the property be given first priority.  This can be accomplished by a subordination agreement.  Such agreements are enforceable, though they are strictly construed.[42]

      Apart from subordination by agreement, there are provisions in the lien statute that result in a subordination of an otherwise prior right.[43]

      The waiver, release, or modification of a lien right does not affect the claimant’s right to pursue the underlying debt.[44]

5. Challenging a Frivolous Lien Claim.

   RCW 60.04.081 provides a summary procedure for challenging a lien that is “frivolous and made without reasonable cause, or clearly excessive.”  This procedure may be invoked at any time after a lien claim has been recorded, even before a foreclosure action has been commenced.  If no foreclosure action has been commenced, the challenge can be brought as a stand-alone proceeding upon payment of a filing fee.[45]

   The frivolous lien statute establishes a summary proceeding in which a property owner (or other permitted challenger) may quickly obtain the release of a lien that is frivolous or the reduction of a lien that is excessive.  Other issues are not permitted.[46]

   The challenger may be the owner of the liened property, another contractor or subcontractor, or lender on the project, or any person with a competing lien.[47]  The challenger brings a motion in the superior court of the county where the property (or some part of it) is located.  The motion must present evidence (by affidavit or declaration) tending to show that the lien is frivolous or excessive and should ask the court to issue an order requiring the lien claimant to appear between six and 15 days after the order is issued to show cause why the lien should not be disallowed.[48]

   The challenger bears the initial burden of showing why the lien is frivolous.  The burden is heavy:  the challenger must show that the lien was improperly filed beyond a legitimate dispute.[49]  If the challenger makes an initial showing, the burden shifts to the lien claimant to make a prima facie case showing that her lien is not frivolous.  If such a showing is made, the burden shifts back to the challenger to prove that the lien was frivolous.[50]  If the lien dispute presents debatable issues of law or fact, the lien should not be found frivolous or without reasonable cause.[51]

   The level of proof required to prove a lien frivolous “beyond legitimate dispute” was illustrated in Intermountain Electric, Inc. v. G-A-T Bros. Construction, Inc.[52]  The lien claimant admitted that its claim of lien was filed 94 days after its last active work at the site, but it argued (1) that the law should be changed in cases where the owner promised that work would resume, and (2) leaving its trailer on the site counted as “furnishing equipment” under RCW 60.04.091.  The trial court rejected these arguments and found the lien frivolous.  The Court of Appeals agreed that the lien was “invalid on its face” but reversed the determination that it was frivolous, noting that “not every invalid lien is frivolous.”[53]  The Court of Appeals concluded that the lien claimant had made at least a good-faith argument for change in the existing law.  In general, debatable issues about material facts will prevent a lien from being frivolous.[54]

   Proving that a lien is “clearly excessive” imposes a different burden.  A lien will not be found “clearly excessive” unless it is shown that the amount of the lien is unquestionably far greater than the value of goods or services provided.[55]

   A challenge under the frivolous lien statute leads to a hearing, after which the court issues an order discharging the lien (if frivolous), reducing the lien (if excessive), or denying the requested relief.  The court must grant costs and reasonable attorneys’ fees to the prevailing party.[56]  The court should issue findings of fact and conclusions of law to support its order.

6. How Owners Can Protect Themselves Against Liens.

   The pre-claim notice required (in some cases) by RCW 60.04.031 contains “Important Information” for owners of the property being improved.  The statutory notice form says in part:

   COMMON METHODS TO AVOID CONSTRUCTION LIENS: There are several methods available to protect your property from construction liens.  The following are two of the more commonly used methods.

   DUAL PAYCHECKS (Joint Checks):  When paying your contractor for services or materials, you may make checks payable jointly to the contractor and the firms furnishing you this notice.

   LIEN RELEASES:  You may require your contractor to provide lien releases signed by all the suppliers and subcontractors from whom you have received this notice.  If they cannot obtain lien releases because you have not paid them, you may use the dual payee check method to protect yourself.

   These suggestions, while well meant, are not helpful in all cases.  Even a project of modest size may have a dozen subcontractors and suppliers; it is not practical to issue checks to 12 parties at once.  Moreover, doing so will not protect the property from a lien by the prime contractor.  Lien releases can provide useful information, but a reasonable form of release will allow subcontractors and suppliers to reserve pending claims that may later turn into liens.[57]  A fuller list of owner options is provided below.

   1. The owner’s contracts with its contractor(s) and designer(s) can include a release of lien rights.
   2. The owner can obtain the consent of appropriate contractors and designers to subordinate their lien rights to the interest of the owner’s lender.
   3. The owner’s contracts with its contractor(s) and designer(s) can minimize the likelihood of claims for additional compensation by clearly stating the scope of work and establishing strict deadlines for notice and submission of claims.
   4. The owner can minimize the risk of multiple liens by requiring the prime contractor and lead designer to respond to liens from their subcontractors, suppliers, and subconsultants. Here is sample language of the sort commonly used in prime construction contracts:

   Upon learning that any lien has been recorded against the Project improvements or property by any person performing a portion of the Contract Work, Contractor shall, at its own expense and within calendar days, remove that lien from the Project improvements and property by settling the claim underlying the lien, recording a bond under RCW 60.04.161, providing other security to the lien claimant, or otherwise.  If the Contractor fails to act as provided in the previous sentence, Owner may record a bond under RCW 60.04.161, and Owner may recover the cost of the bond from the Contractor or deduct that cost from amounts otherwise coming due to the Contractor.

   1. If the owner is concerned about liens arising from work ordered by a person holding (g.) a leasehold interest in the property, make sure the lease clearly defines the extent to which the lessee is required to perform improvements.
   2. The owner can require the prime contractor and lead designer to submit, with their periodic invoices, conditional or unconditional lien releases for at least their major subcontractors, suppliers, and subconsultants, or to give notice if any of the subcontractors, suppliers, or subconsultants have asserted a timely claim for additional compensation.
   3. The owner can provide (or direct the prime contractor to provide) a bond or other security for payment of the contractor(s) or designer(s) and obtain agreements expressly accepting the alternate security in place of lien rights. This can be done at the outset of a project or after lien claims have been recorded.
   4. If a lien claim is recorded by a subcontractor or supplier not in privity with the owner, the owner may under RCW 60.04.151 withhold amounts from the prime contractor sufficient to protect against the lien claim.
   5. If a lien claim is recorded by a subcontractor or supplier, not in privity with the owner, the owner can use joint checks made out to the prime contractor and the lien claimant.
   6. The owner can track recorded lien claims and determine whether there are grounds to challenge them as frivolous or excessive in amount. If the lien claimant records an “unjust, excessive, or premature notice” of lien under the stop notice provisions, the owner may recover damages and attorneys’ fees.[58]

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[1] See RCW 18.27.080 (unregistered contractors) and RCW 18.08.460(4) (unregistered architects). There is no similar statute for engineers and land surveyors in RCW Chapter 18.43 or for electricians in RCW Chapter 19.28. The contractor registration statute does not bar an unregistered contractor from suing another contractor. See Frank v. Fischer, 108 Wash. 2d 468, 472, 739 P.2d 1145 (1987) (citing Bremmeyer v. Peter Kiewit Sons Co., 90 Wash. 2d 787, 585 P.2d 1174 (1978)); see also Hinton v. Johnson, 87 Wash. App. 670, 942 P.2d 1061 (1997) (owner who regularly engaged in business as a contractor was not entitled to assert the construction registration statute as a defense to a lien claim).

[2] See, e.g., Mike M. Johnson, Inc. v. Cnty. of Spokane, 150 Wash. 2d 375, 78 P.3d 161 (2003).

[3] Acceptance by endorsement of a joint check may be deemed payment, even if the co-payee fails to share any of the funds.  See AAA Cabinets & Millwork, Inc. v. Accredited Sur. & Cas. Co., 132 Wash. App. 202, 208-09, 130 P.3d 887 (2006).

[4] See supra, Chapter Two, Section 3, The Improvement of Real Property.

[5] See Work Authorized by the Owner. See RCW 60.04.041, which limits the ability of an unregistered contractor to serve as the agent of the owner; see also Colo. Structures, Inc. v. Blue Mountain Plaza, LLC, 159 Wash. App. 654, 664, 246 P.3d 835 (2011) (to support lien, work must be performed under contract with owner or owner’s construction agent).

[6] See supra, Chapter Three, Section 2, Pre-Claim Notices Under the Lien Statute.

[7] See RCW 18.27.114, which requires notice on projects to construct or repair four or fewer residential units or to construct or repair a commercial building where the contract price is less than $60,000.

[8] The homestead exemption is of limited use in lien cases, see RCW 6.13.080(1). A homestead declaration filed after lienable work has begun is not effective. See Brace & Hergert Mill Co. v. Burbank, 87 Wash. 356, 361-63, 154 P. 465 (1915).

[9] RCW 60.04.051 (lien attaches to property on which improvement was made). Note that a claim of lien may be amended to correct the property description. See, e.g., 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).

[10] RCW 60.04.161.

[11] See supra, Chapter 5, Section 6, Lien Priority Issues in a Foreclosure Action.

[12] See infra, Section 4.

[13] See supra, Chapter 4, Section 3, When to File and Serve a Claim of Lien.

[14] See supra, Chapter 4, Section 4, The Form and Content of a Claim of Lien.

[15] See supra, Chapter 5, Section 2, Where, When, and How to Commence a Foreclosure Action.

[16] See supra, Chapter 5, Section 3, Serving the Foreclosure Action on the Owner.

[17] RCW 60.04.900.

[18] See Schroeder v. Excelsior Mgmt. Grp., LLC, 177 Wash. 2d 94, 106, 297 P.3d 677 (2013); Albice v. Premier Mortg. Servs. of Wash., Inc., 174 Wash. 2d 560, 569, 276 P.3d 1277 (2012).

[19] See Voelker v. Joseph, 62 Wash. 2d 429, 435, 383 P.2d 301 (1963); Bowman v. Webster, 44 Wash. 2d 667, 670, 269 P.2d 960 (1954).

[20] See, e.g., DeNike v. Mowery, 69 Wash. 2d 357, 367, 418 P.2d 1010 (1966). The term “release” has additional meanings in the lien context.  See, e.g., RCW 60.04.081(4) (court may issue an order “releasing” a claimant’s frivolous lien); RCW 60.04.161 (a bond may “release” another person’s real property from a construction lien).

[21] See Boise Cascade Corp. v. Distinctive Homes, Inc., 67 Wash. 2d 289, 290, 407 P.2d 452 (1965). The Court of Appeals reversed a finding of an oral “waiver” of lien rights in exchange for a promissory note, even though the finding was supported by substantial evidence.

[22] No published Washington authority states that lien rights can or cannot be waived or released orally, but lien rights can be waived by conduct (e.g., by failing to timely commence foreclosure), from which it follows that a writing is not required.  In Boise Cascade Corp., 67 Wash. 2d 289, the court appears to have assumed that lien rights could be released orally (for consideration). See also N. Coast Elec. Co. v. Arizona Elec. Serv., Inc., No. 55525-1-I, 2006 Wash. App. LEXIS 463 (unpublished) (Court of Appeals remanded to allow a contractor to prove the terms of an alleged oral contract that included a release of lien rights). It would seem that an express oral waiver or release can be effective, though it may be hard to prove.

[23] See Bowman, 44 Wash. 2d at 669.

[24] See, e.g., RCW 60.04.091 (90-day period for recording lien claim is a “period of limitation”).

[25] See Charles K. Spaulding Logging Co. v. Ryckman, 139 Or. 230, 238-42, 6 P.2d 25 (1932). Under the terminology used here, this action could be characterized as a waiver or a release.

[26] See RCW 60.04.191 (effect of note); Emrich v. Gardner & Hitchings, Inc., 51 Wash. 2d 528, 534, 320 P.2d 288 (1958) (extension of credit); see also RCW 60.04.141 (credit terms stated in lien claim extend the deadline for commencing foreclosure and, by implication, do not waive the lien).

[27] The lien statute expressly contemplates arbitration. See RCW 60.04.181(3).

[28] RCW 60.04.071.

[29] RCW 60.04.191.

[30] RCW 60.04.161, last paragraph.

[31] See A.A.R. Testing Lab’y, Inc. v. New Hope Baptist Church, 112 Wash. App. 442, 50 P.3d 650 (2002) (lien waivers given with progress payments released lien rights with respect to work through stated dates).

[32] It is prudent to use forms of conditional and unconditional lien releases that balance the interests of the parties by (a) releasing the claimant’s lien rights and claims with respect to work performed on a particular project during a particular time period, but (b) allowing the claimant to reserve lien rights and claims with respect to retainage (if any) and other timely asserted claims for compensation.

[33] See Bowman, 44 Wash. 2d at 669 (“the right, advantage, or benefit must exist at the time of the alleged waiver”).

[34] RCW 60.04.035.

[35] See J. A. Bock, Validity and Effect of Provision in Contract Against Mechanic's Lien, 76 A.L.R.2d 1087 (1961) (collecting cases).

[36] See Haskell v. McClintic-Marshall Co., 289 F. 405 (9th Cir. 1923) (affirming trial court’s ruling that contractual lien waivers were induced by fraud but raising no general objections to such waivers).

[37] See, e.g., Alaska Stat. § 34.35.117; Cal. Civ. Code § 8122. The Nevada Supreme Court held a prospective lien release void on grounds of public policy even before a limiting statute came into effect, relying on California’s legislative lead. See Lehrer McGovern Bovis, Inc. v. Bullock Insulation, Inc., 124 Nev. 1102, 197 P.3d 1032, 1041-42 (2008).

[38] See, e.g., Mattingly v. Palmer Ridge Homes LLC, 157 Wash. App. 376, 395-96, 238 P.3d 505 (2010) (disclaimer of implied warranties is effective if conspicuous and bargained for).

[39] See Maurice T. Brunner, LL.B., Release or Waiver of Mechanic's Lien by General Contractor as Affecting Rights of Subcontractor or Materialman, 75 A.L.R.3d 505 (1977).

[40] The following cases explore the same issue in other contexts:  Schroeder, 177 Wash. 2d at 106-07 (property owner may not waive requirement that deeds of trust on agricultural land be foreclosed judicially); Bain v. Metro. Mortg. Grp., Inc., 175 Wash. 2d 83, 285 P.3d 34 (2012) (parties cannot by agreement change the definition of “beneficiary” in the deed of trust statute); Godfrey v. Hartford Cas. Ins. Co., 142 Wash. 2d 885, 889, 16 P.3d 617 (2001) (parties who agree to arbitrate cannot vary by agreement the provisions of Washington’s arbitration statute).

[41]Adel v. Blattman, 57 Wash. 2d 337, 341, 357 P.2d 159 (1960) (waiver of lien given to lender discharged the property from the lien; the owner could claim the benefit of waiver).

[42] See A.A.R. Testing Lab’y, Inc., 112 Wash. App. at 449 (subordination agreements are enforced); Ban-Co Inv. Co. v. Loveless, 22 Wash. App. 122, 134-35, 587 P.2d 567 (1978) (priority rights under a subordination agreement are limited strictly by the express terms and conditions of the agreement).

[43] See, e.g., RCW 60.04.031(5) (if claimant provides professional services not visible from an inspection of the property and fails to record notice, her lien will be subordinated to the interest of a subsequent mortgagee or purchaser); RCW 60.04.131 (if a claimant working on two separate properties fails to allocate the amount due between the properties, her lien is subordinated to other liens that are allocated); RCW 60.04.221(7) (if a lender fails to respond properly to a stop notice, its lien is subordinated to that of the party sending the notice).

[44] See Sullins v. Sullins, 65 Wash. 2d 283, 285, 396 P.2d 886 (1964).

[45] RCW 60.04.081(3). The statutory challenge to a frivolous lien was patterned after the unlawful detainer statute.

[46] See Andries v. Covey, 128 Wash. App. 546, 550, 113 P.3d 483 (2005) (procedure under the frivolous lien statute does not substitute for a foreclosure action and therefore does not toll the eight-month deadline for filing a foreclosure action under RCW 60.04.141).

[47] A former owner of the liened property may not use the frivolous lien statute. See Christenson v. McDuffy, 93 Wash. App. 177, 968 P.2d 18 (1998).

[48] RCW 60.04.081(1).

[49] See Gray v. Bourgette Constr., LLC, 160 Wash. App. 334, 342, 249 P.3d 644 (2011).

[50] Id.

[51] Id. at 344.

[52] 115 Wash. App. 384, 62 P.3d 548 (2003).

[53] Id. at 394.

[54] See S.D. Deacon Corp. of Wash. v. Gaston Bros. Excavating, Inc., 150 Wash. App. 87, 206 P.3d 689 (2009) (whether parties’ contract was integrated was debatable, preventing relief under frivolous lien statute).

[55] See Woodley v. Style Corp., 7 Wash. App. 2d 543, 559-560, 453 P.3d 739 (2019).

[56] Under RCW 60.04.081(4), the court “shall” make an order including an award of fees. Cf. W.R.P. Lake Union Ltd. P’ship v. Exterior Servs., Inc., 85 Wash. App. 744, 934 P.2d 722 (1997) (fees mandatory under RCW 60.04.081). By contrast, under RCW 60.04.181, the court “may” award fees.

[57] See supra, Chapter 5, Section 4, Parties to Be Included in a Foreclosure Action.

[58] RCW 60.04.221(8); see also Puget Sound Plywood, Inc. v. Mester, 86 Wash. 2d 135, 542 P.2d 756 (1975).