To file a construction lien against your property, a contractor must meet certain legal prequalifications. County recorders, however, are required to file construction lien instruments presented to them, regardless of a contractor's legal ability. The result? A construction lien may be placed against your property improperly. In Washington, like in most states, there is a defined manner of disputing the validity of a construction lien.
Is the lien frivolous?
Liens subject to forced removal are termed "frivolous liens" by Washington law. According to a Washington statute, a lien is frivolous "if it is made without reasonable cause or clearly excessive."
Practically speaking, this breaks down invalid liens into two categories:
1) Circumstances when the lien was filed without following technical substantive or procedure rules of lien
2) Circumstances when the lien is clearly devoid of any merit whatsoever
Regarding the first category of frivolous liens, the following are some common mistakes:
- Failure to adequately describe the property in the lien (i.e., filing without a legal property description).
- Failure to provide the proper required notices. Notice is required from the claimant in some circumstances, but not all.
- Failure to meet all of the statutory content requirements. The law is specific as to what must be identified in a lien, and in Washington, the lien must be notarized.
- Failure to file on time. In Washington, liens must be filed within 90 days from when the claimant last performed services or delivered materials.
The second category of frivolous liens is more complex because it is marginally subjective. Basically, a judge will review the arguments of both parties and determine whether the lien is "clearly excessive."
When disputing a construction lien, you're more likely to find success if the lien has a procedural defect(category 1) as opposed to a substantive defect (category 2). The reason is simple: Category 1 defects are objective determinations that are easy to demonstrate, while category 2 defects are subjective and vulnerable to argument.
Washington courts are reluctant to dismiss construction liens based on category 2 defects unless they "present no debatable issues and [are] so devoid of merit that it has no possibility of succeeding." Intermountain Elec., Inc. v. G-A-T Bros. Constr. Inc (2003).
How to dispute a lien
In Washington, the procedure for disputing a lien is provided for and is designed to be a speedy resolution to property record abuses.
To dispute a lien:
first, you need to apply to the appropriate superior court by motion for an order directing the claimant (the party who filed the lien) to appear in court and show cause why the lien is proper. The motion should be brought within the superior court in the county where the land is located. In your motion, you should briefly explain why you feel the lien is frivolous.
Second, the court will set a hearing date according to the statute, which provides for a hearing date no earlier than 6 days and no later than 15 days following service of the motion.
Third, on the assigned hearing date, you and the claimant will appear before a judge to present your respective positions, and the judge will make a determination as to the lien's validity. If the lien is considered "frivolous," the judge will order its removal from the property records.
Recovering, and possibly paying, attorneys' fees
If you bring a proceeding to dispute a construction lien and you win, you'll be entitled to recover attorneys' fees from the losing party as per the Washington statute.
The statute, however, awards attorneys' fees to the "winner" in a lien dispute proceeding regardless of whether that party is the property owner or the construction professional. In other words, if you bring the proceeding and lose, you may be obligated to pay your adversary's attorneys' fees! This statute, therefore, seriously raises the stakes of disputing a lien in Washington.
While you may feel that the contractor's work was poor or that you have been overcharged, the "clearly excessive" requirement of the statute demonstrates that Washington law is inclined to require owners and contractors to resolve that dispute through an ordinary trial-and the construction lien will likely stay put until that trial date.
Hiring an attorney and getting started
While these lien dispute proceedings are not the most complex procedures, you would be well served to hire an attorney to represent you against a lien claimant. The risks of paying your adversary's attorneys' fees upon defeat makes it especially advisable to consult with an attorney for an objective opinion on your claim's merits.
Related Legal Guides:
Construction Liens in Washington State