Design professionals providing professional services for the improvement of real property also have lien rights under Washington’s Mechanics’ and Materialmen’s lien statute, too.[1] RCW 60.04, et seq., specifically authorizes liens upon the improvement of real property for the contract price of professional services provided at the instance of the owner, or the agent or the construction agent of the owner.[2] Professional services include surveying, establishing or marking the boundaries of, preparing maps, plans, or specifications for, or inspecting, testing, or otherwise performing any other architectural or engineering services for the improvement of real property.[3]
The process of establishing and perfecting a design professional lien is similar to the process for persons or contractor entities providing labor, materials, or equipment. The process generally consists of notice, recordation of the claim of lien in the county where the subject property is located, and filing a lien foreclosure action in superior court.
Under RCW 60.04.031, initial notice is not required for design professionals who furnish professional services under a contract with the owner or the owner’s common law agent. For owner-occupied single-family residences or appurtenant garages, if the design professional does not contract directly with the owner-occupier or their common law agent, notice is required to be given to the owner-occupier. Notice of a right to claim lien for new construction of a single-family residence may be given at any time but only protects the right to claim a lien for professional services after a date which is ten days before the notice is given; for all other construction projects, notice may likewise be given at any time but only protects the right to claim a lien for professional services after the date with is sixty days before (1) mailing the notice by certified or registered mail to the owner or reputed owner, or (2) delivering or serving the notice personally upon the owner or reputed owner and obtaining evidence of delivery in the form of a receipt or other acknowledgment signed by the owner or reputed owner or an affidavit of service. Notice to the owner can be given substantially in the form required by statute, located here. Best practices are to mail or serve any required notice as early as possible to protect the full scope of professional services provided.
Note that in the case where a design professional is providing professional services in connection with the repair, alteration, or remodel of an existing owner-occupied single-family residence or appurtenant garage and does not contract directly with the owner-occupier or their common law agent, lien claims may only be satisfied from amounts not yet paid to the prime contractor by the owner at the time the notice described in this section is received, regardless of whether amounts not yet paid to the prime contractor are due.[4]
Unlike lien rights for contractors, which arise on the date a contractor first performs work and are superior to the rights of others taking an interest in the real property subject to the claim of lien even though the contractor’s lien may be recorded later, design professional have additional requirements for preserving the superiority of their lien rights against the interests of others who may also have an interest in the real property subject to the claim of lien. RCW 60.04.031 provides an additional requirement for design professionals: every potential lien claimant providing professional services where no improvement, i.e., constructing, altering, repairing, remodeling, demolishing, clearing, grading, or filling in, of, to, or upon any real property or street or road in front of or adjoining the same, or planting of trees, vines, shrubs, plants, hedges, or lawns, or providing other landscaping materials on any real property has been commenced (collectively “Improvements”), and the professional services provided are not visible from an inspection of the real property may record in the real property records of the county where the property is located a notice which shall contain the professional service provider’s name, address, telephone number, legal description of the property, the owner or reputed owner’s name, and the general nature of the professional services provided substantially in the form required by statute, located here.
Importantly, if such notice is not recorded, the lien claimed shall be subordinate to the interest of any subsequent mortgagee and invalid as to the interest of any subsequent purchaser if the mortgagee or purchaser acts in good faith and for a valuable consideration acquires an interest in the property prior to the commencement of an Improvement without notice of the professional services being provided. While recordation is voluntary, if a design professional does not record the notice of its furnishing of professional services, a design professional could lose all or a portion of any potential lien proceeds if the notice is not recorded.
Just like contractors, design professionals must record a notice of their claim of lien not later than ninety days after the person has ceased to furnish professional services.[5] The claim of lien is identical to that of contractors and should be provided substantially in the form required by statute, located here. Design professionals must give a copy of the claim of lien to the owner or reputed owner by mailing it by certified or registered mail or by personal service within fourteen days of the time the claim of lien is filed for recording. A failure to provide such notice results in forfeiture of any right the design professional may have to attorneys’ fees and costs against the owner.[6] Provided these requirements are met, design professional claims of lien may be foreclosed and enforced by a civil action in the court having jurisdiction – the superior court in the county where the subject property is located.[7]
Design professional liens are very similar to contractor liens for material and labor. However, design professionals must be mindful that they could lose all or a portion of their lien proceeds if notice is not recorded. While this is not a mandatory course of action by statute to perfect a design professional lien, it is a recommended practice because design professionals may provide professional services in advance of a sale or the taking out of a mortgage by the property owner, and their otherwise valid lien rights may be lost if the notice of furnishing professional services is not recorded. While a claim of lien for professional services provided to someone other than the owner-occupier of a single-family residence or appurtenant garage can only be satisfied from amounts not yet paid to the prime contractor, this likely is not a barrier to full recovery in most cases as the majority of design services are front-loaded and it is likely in such a scenario that there would be ample balance on the prime contractor’s fee; however, if professional services are provided later in such a project, design professionals should be mindful of this additional limitation on their right to potential recovery.
[1] See RCW 60.04, et seq.
[2] The Construction Agent of the owner could be a licensed contractor or subcontractor or any other person having charge of any improvement to real property. See RCW 60.04.011(1).
[3] RCW 60.04.011(13).
[4] RCW 60.04.031(3)(b).
[5] RCW 60.04.091.
[6] RCW 60.04.091; see also RCW 60.04.181(3).
[7] RCW 60.04.141.