A March 24, 2010, decision by Division II of the Washington state Court of Appeals underscores the need for all potential construction lien claimants to check their forms and comply with the lien statute or risk losing their lien rights. A copy of the case, Williams v. Athletic Field, Inc., can be found here.
Athletic Field claimed a lien under RCW 60.04. The claim of lien included an attestation by an employee of LienData USA, a corporate lien-filing service. The claim identified LienData as the agent of the claimant. The property owners moved for an order to show cause why the lien should not be quashed under the frivolous lien statute, RCW 60.04.081. They made two arguments: (a) that the lien statute required the claimant or its attorney to make the statutory attestation (i.e., attestation by an agent was not enough); and (b) that they owed no money to Athletic Field.
The trial court entered an order releasing the lien because the lien was not attested by the claimant, an officer of the claimant or its attorney, and awarded attorneys fees.
In its first opinion, Division II reversed. It held that attestation by an agent of the claimant (the lien-filing service) met the statutory requirement. The property owners moved for reconsideration, arguing that the form of attestation used by the lien-filing service was not proper—the claim of lien identified LienData as the agent for Athletic Field, but the attestation was by an individual employee of LienData and not in corporate form.
Division II granted reconsideration, withdrew its first opinion, and issued the March 24 opinion (see the above link). An agent may make the statutory attestation on behalf of a lien claimant, but must use the proper form of attestation and acknowledgment. The lien statute requires acknowledgment "pursuant to chapter 64.08 RCW." RCW 64.08 provides forms of acknowledgment for individuals and corporations. Because the claim of lien identified LienData, a corporation, as the agent for Athletic Field, a corporate acknowledgment should have been used. Because the LienData employee signed an individual form of acknowledgment, it did not comply with the lien statute. Lien statutes, being in derogation of the common law, are strictly construed. The court therefore held that the LienData employee's failure to use a corporate form of acknowledgment meant that the lien was invalid.
On a happier note for Athletic Field (and LienData USA), the court reversed the award of attorneys fees.
Needless to say, lien claimants, filers, and owners should check their lien forms. If the statutory attestation/acknowledgment is not being used, it should be, and questionable filings should be amended immediately as a precaution.