Chapter Three: Pre-Claim Notices

1. Introduction.

   Although “inchoate” lien rights arise as soon as lienable work begins, steps must be taken to keep those rights in existence, to “perfect” the lien.  One of these may be the submission of a pre-claim notice.  Certain claimants must submit pre-claim notices or else their lien rights are lost.  Independently of the lien statute, the contractor registration statute requires certain notices to customers, which, if not given, can affect lien rights.  Both the lien statute and the contractor registration statute require notices of whether or not a lien is sought.  These matters are discussed below, as follows:

   • Section 2:  Pre-Claim Notices Under the Lien Statute.
   • Section 3:  Notices to Customers Under the Contractor Registration Statute.
   • Section 4:  Notices Independent of Lien Claims.
2. Pre-Claim Notices Under the Lien Statute.

   The general rule is that “every person furnishing professional services, materials, or equipment for the improvement of real property shall give the owner or reputed owner notice in writing of the right to claim a lien.”[1]  This rule is subject to significant exceptions.  The following issues are covered in the subsections below:

   1. Who must give a pre-claim notice.
   2. To whom the pre-claim notice must be given.
   3. When the pre-claim notice is given.
   4. The content of the pre-claim notice.
   5. Notice regarding professional services.
   1. Who Must Give a Pre-Claim Notice?

      Although subsection (1) of the statute states a very broad rule (“every person” shall give notice), subsection (2) exempts the following persons from the pre-claim notice requirement:

      • Persons who contract directly with the property owner, either directly or through the owner’s common law agent.[2] In the case of work on an owner-occupied single-family residence, this exemption applies only to persons who contract directly with the “owner-occupier.”[3]
      • Persons whose claim is solely for labor.[4]
      • Subcontractors who contract directly with the prime contractor.[5] These are sometimes called “first-tier subcontractors.”  Note that first-tier material or equipment suppliers are not exempted.  This exemption also does not apply in the case of work on an owner-occupied single-family residence.[6]

      In summary, on commercial projects, pre-claim notices must be given by material or equipment suppliers who do not contract directly with the owner and by subcontractors who do not contract directly with the prime contractor.  The notice requirement is stricter in the case of owner-occupied single-family residences.  Claimants who provide labor do not need to give pre-claim notices on commercial or residential projects to maintain a lien claim for that labor.[7]  However, if a claimant provides labor and materials together (e.g., by installing concrete sidewalks), it is prudent to give a pre-claim notice because otherwise the claimant will have no lien for the materials component and will need to effectively segregate the value of the labor component.[8]

   2. To Whom the Pre-Claim Notice Must Be Given.

      The pre-claim notice must be given to the “owner or reputed owner.”  The term “owner” is not defined in the statute, so the ordinary meaning of the term is presumed.  If the record owner of land orders a building to be constructed, that person is the “owner” under this statute.  But the situation can be more complex if the person ordering the work owns less than the fee (e.g., a leasehold), if a person holds himself out as an owner when he is not, or if there are multiple owners.

      The clear intent of the statute is to protect property owners from the risk of paying twice for the same work, once to the contractor and again to a lien claimant.  However, the interests of property owners must be balanced against the interests of potential lien claimants who may have only limited information about the ownership of the property they are working on.  To protect lien claimants, the statute permits notice to the “owner or reputed owner,” which does not appear to hold lien claimants to a high degree of diligence.[9]

      On projects costing more than $5,000, the prime contractor is required to post a notice identifying the property and the property owner.[10]  On any project with a building permit, the same information should be retained by the permitting authority and set forth on the posted permit.[11]  On any project, the prime contractor is required to provide the same information to any subcontractor or supplier upon request.[12]  Thus, it should not be hard to determine at least a “reputed owner,” which should be sufficient for purposes of the pre-claim notice.

      If the prime contractor has posted its contact information, then pre-claim notice should be copied to the prime contractor, unless the claimant has contracted directly with the prime.[13]

      To be effective, pre-claim notices must be given in one of the following ways:

      • Certified or registered mail (which generates a delivery receipt).
      • Personal service with either a receipt signed by the addressee or an affidavit of service.[14]

      Although the statute intends to give actual notice, it has been held that actual notice is not enough if the statutory requirements are not met.[15]  However, it may be possible to show that an owner, by making positive assurances of payment to a subcontractor, is estopped to claim a lack of pre-claim notice.[16]

      The statute says that notice is effective upon delivery or proper mailing.[17]

   3. When the Pre-Claim Notice Is Given.

      The statute allows notice to be given at any time, but on commercial projects the notice only protects the right to claim a lien for work performed or materials or equipment supplied after the date 60 days before notice is effective.[18]  In other words, notice given within 60 days of starting work will preserve the lien right for all the work done.  Later notice will preserve lien rights for part of the work only.  This may not be a problem if the claimant is paid for the early portions of her work.

      The rule for new construction of a single-family residence is stricter:  the notice can be given at any time, but it protects the right to claim a lien only for work performed or materials or equipment supplied after the date 10 days before notice is effective.  The rule for work on an occupied single-family residence is stricter still:  the notice can be given at any time, but it protects lien rights only to the extent of amounts the owner-occupier has not yet paid the prime contractor when the notice is received.  “Received” in this context is defined to mean actual receipt by personal service or mailing, or constructive receipt three days after proper mailing by registered or certified mail, excluding Saturdays, Sundays, and legal holidays.[19]

      The date of the pre-claim notice is important for determining what work falls within the lien remedy.  It does not determine the priority of one lien against another.  That subject is discussed in Chapter Five.

   4. The Content of the Pre-Claim Notice.

      RCW 60.04.031 includes a form of pre-claim notice.  At least a 10-point font must be used.  The first part of the form in the statute is a bit obscure.  Here is an example of how it looks when filled in [the words in square brackets are explanatory]:

      To:       Smith & Jones, Inc. [the property owner]

      Date:   April 1, 2014 [date the notice is delivered or mailed]

      Re:       Property at 123 Main Street, Everett, Washington [a more general description is also acceptable, e.g., “Units 2, 3 and 5 of new residential development at First and Main, Everett, WA”]

      From:  Eager Supply Corp. [the lien claimant]

      AT THE REQUEST OF:  Capable Builders [the construction agent that has hired the lien claimant]

      The statutory form also includes paragraphs appropriate to work on an occupied single-family residence and for other projects.  The correct paragraphs should be used on each project.

      A pre-claim notice must be “substantially” in the statutory form, so it is prudent to use the form, with appropriate upper- and lowercase letters exactly as given, though, as illustrated above, the layout of the information on the page may vary.  Because copying the statutory form is not a trivial task, it would be helpful to have a pre-claim notice form ready for use, with only the specific project information left for completion.

   5. Notice Regarding Professional Services.

      Providers of professional services are subject to the normal rule of pre-claim notice to the property owner as stated above.  However, additional public notice is advisable if the professional’s work is not visible from an inspection of the property.  That notice is described at the end of RCW 60.04.031, after the general pre-claim notice form.[20]  A professional may record in the real property records of the county where the project is located a “notice of furnishing professional services.”  A sample notice is provided in the statute.  Again, the first part of the statutory form is a bit obscure; here is an example of how it looks when completed:

      On the first day of April 2014, Reputable Architects began providing professional services upon or for the improvement of real property legally described as follows:

      Because this notice is recorded, an accurate legal description of the property must be included.  The purpose of this publicly recorded notice is to preserve the professional’s lien priority over others who might otherwise acquire interests in the property without notice of the lien.[21]

3. Notices to Customers Under the Contractor Registration Statute.

   The contractor registration statute requires “any contractor” performing certain defined work (generally of limited scope) to provide a disclosure statement to its “customer” before commencing work.[22]  The disclosure is intended to provide the contractor’s customer with information about his rights, discloses the contractor’s registration and bonding requirements, and gives notice of the contractor’s right to file a lien claim in the event of nonpayment.

   The Disclosure Statement is required of any contractor agreeing to perform any project:

   (a)        for the repair, alteration, or construction of four or fewer residential units or accessory structures on such residential property when the bid or contract price totals $1,000 or more; or

   (b)        for the repair, alteration, or construction of a commercial building when the bid or contract price totals at least $1,000 but less than $60,000.

   This statutory requirement does not apply to public contracts or to contractors that contract with other contractors.[23]  The point of this statute for our purposes is that a contractor subject to the requirement and failing to comply may not bring or maintain any lien claim.[24]

   The statute provides a form of a disclosure statement, which is self-explanatory and must be substantially followed to track the statutory form as closely as possible (i.e., using lowercase and uppercase 12-point font and bold type as appropriate and consistent with the form).  The form, along with explanatory information, can also be found on the Washington Department of Labor & Industries website.  Note that the form contains a place for the customer to acknowledge receipt of the disclosure in writing.  Contractors should check the Department’s website for possible updates to the required disclosure form.

   Every contractor that submits a disclosure statement under the contractor registration statute should also submit additional information prepared by the Department of Labor & Industries.[25] Additionally, the contractor must retain a signed copy of the disclosure statement in its files for a minimum of three years and produce a signed or electronic signature copy of the disclosure statement to the Department upon request.  It might be prudent for a contractor to include all the required “notice to customer” information in its form contract.

4. Notices Independent of Lien Claims.

   The lien statute contains additional notice requirements that are not directly related to the perfection of a lien but should be noted.  The first is this:  on any project costing more than $5,000, the prime contractor shall post a notice containing information about the property, the owner, and the prime contractor’s contact information.[26]  Posting a building permit containing the required information constitutes compliance with this requirement.[27]  Failure to post this information does not affect the prime contractor’s lien, but it may lead to civil penalties.[28]

   A second requirement is that the prime contractor on any project shall “immediately” provide the information normally contained on a building permit to any subcontractor, supplier, or provider of professional services as soon as the prime contractor becomes aware of their involvement in the project.[29]  The prime contractor’s lien rights do not depend on this, but failure to provide the information may provoke the Department of Labor and Industries to adverse action.

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[1] RCW 60.04.031(1).

[2] RCW 60.04.031(2)(a). The exemption is not triggered by a “construction agent.”

[3] RCW 60.04.031(3)(a). “Owner-occupied” is (not very helpfully) defined in RCW 60.04.011(9).

[4] RCW 60.04.031(2)(b). Business entities providing labor are exempt as well as individual laborers.  See Pac. Erectors, Inc. v. Gall Landau Young Constr. Co., 62 Wash. App. 158, 170, 813 P.2d 1243 (1991).

[5] RCW 60.04.031(2)(c).

[6] RCW 60.04.031(3)(b).

[7] Velazquez Framing, LLC v. Cascadia Homes, Inc., 2 Wash. 3d 552, 540 P.3d 1170 (2024).

[8] See LRS Elec. Controls, Inc. v. Hamre Constr., Inc., 153 Wash. 2d 731, 741, 107 P.3d 721 (2005) (where an HVAC contractor, on a public project, lost its lien claim based on the supply of materials because of lack of pre-claim notice, but retained its lien claim for separately invoiced labor, for which no pre-claim notice was required); Velazquez Framing, LLC, 2 Wash. 3d 552.

[9] Cf. Mut. Sav. & Loan Ass’n v. Johnson, 153 Wash. 41, 47, 279 P. 108 (1929) (construing prior statute). See also RCW 60.04.091, which permits a claim of lien to name the “owner or reputed owner.”  By contrast, a person initiating a lien foreclosure lawsuit must serve the “owner” within a limited time, and this requirement is strictly enforced.  See RCW 60.04.141 and infra, Chapter 5, Serving the Foreclosure Action on the Owner.

[10] RCW 60.04.230(1). See infra, Notices Independent of Lien Claims.

[11] RCW 19.27.095.

[12] RCW 60.04.261.

[13] RCW 60.04.031(1).

[14] RCW 60.04.031(1)(a), (b).

[15] See Johnson’s Wholesale Plumbing, Inc. v. Holloway, 17 Wash. App. 449, 451, 563 P.2d 1294 (1977); Johnson v. Heirgood, 72 Wash. 120, 123-24, 129 P. 909 (1913).

[16] See Robinson Tile & Marble Co. v. Samuels, 147 Wash. 445, 446-47, 266 P. 701 (1928).

[17] RCW 60.04.031(1). Mailing to an incorrect address is not effective notice. CHG Int’l, Inc. v. Platt Elec. Supply, Inc., 23 Wash. App. 425, 427, 597 P.2d 412 (1979).

[18] RCW 60.04.031(1).

[19] RCW 60.04.031(3)(b).

[20] Professional services are defined in RCW 60.04.011(13).

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

[22] RCW 18.27.114(1).

[23] RCW 18.27.114(5).

[24] RCW 18.27.114(4).

[25] RCW 60.04.255(2). Failure to comply with this statute does not appear to affect lien rights.

[26] RCW 60.04.230(1).

[27] RCW 60.04.230(2).

[28] RCW 60.04.230(3). Failure to provide the required information may also relieve a subcontractor from sending a copy of her pre-claim notice to the general contractor.  See RCW 60.04.031(1).

[29] RCW 60.04.261.