AN ACT
Relating to nonconsensual common law liens; amending RCW 60.70.010 and
60.70.030; and adding new sections to chapter 60.70 RCW.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
Sec.
1. RCW
60.70.010 and 1986 c 181 s 1 are each amended to read as follows:
(1) It
is the intent of this chapter to limit the circumstances in which nonconsensual
common law liens shall be recognized in this state.
(2)
For the purposes of this chapter:
(a)
"Lien" means an encumbrance on property as security for the payment
of a debt; ((and))
(b)
"Nonconsensual common law lien" is a lien that:
(i) Is
((recognized now or hereafter under the common law of this state)) not
provided for by a specific statute;
(ii)
Does not depend upon the consent of the owner of the property affected for its
existence; and
(iii)
Is not a court-imposed equitable or constructive lien;
(c)
"State or local official or employee" means an appointed or elected
official or any employee of a state agency, board, commission, department in
any branch of state government, or institution of higher education; or of a
school district, political subdivision, or unit of local government of this
state; and
(d)
"Federal official or employee" means an employee of the government
and federal agency as defined for purposes of the federal tort claims act, 28
U.S.C. Sec. 2671.
(3)
Nothing in this chapter is intended to affect:
(a)
Any lien provided for by statute;
(b)
Any consensual liens now or hereafter recognized under the common law of this
state; or
(c)
The ability of courts to impose equitable or constructive liens.
NEW
SECTION. Sec. 2. A new
section is added to chapter 60.70 RCW to read as follows:
(1)
Any person whose real or personal property is subject to a recorded claim of
common law lien who believes the claim of lien is invalid, may petition the
superior court of the county in which the claim of lien has been recorded for
an order, which may be granted ex parte, directing the lien claimant to appear
before the court at a time no earlier than six nor later than twenty-one days
following the date of service of the petition and order on the lien claimant,
and show cause, if any, why the claim of lien should not be stricken and other
relief provided for by this section should not be granted. The petition shall
state the grounds upon which relief is requested, and shall be supported by the
affidavit of the petitioner or his or her attorney setting forth a concise
statement of the facts upon which the motion is based. The order shall be
served upon the lien claimant by personal service, or, where the court
determines that service by mail is likely to give actual notice, the court may
order that service be made by any person over eighteen years of age, who is
competent to be a witness, other than a party, by mailing copies of the
petition and order to the lien claimant at his or her last known address or any
other address determined by the court to be appropriate. Two copies shall be
mailed, postage prepaid, one by ordinary first class mail and the other by a
form of mail requiring a signed receipt showing when and to whom it was
delivered. The envelopes must bear the return address of the sender.
(2)
The order shall clearly state that if the lien claimant fails to appear at the
time and place noted, the claim of lien shall be stricken and released and that
the lien claimant shall be ordered to pay the costs incurred by the petitioner,
including reasonable attorneys' fees.
(3)
The clerk of the court shall assign a cause number to the petition and obtain
from the petitioner a filing fee of thirty-five dollars.
(4)
If, following a hearing on the matter, the court determines that the claim of
lien is invalid, the court shall issue an order striking and releasing the
claim of lien and awarding costs and reasonable attorneys' fees to the
petitioner to be paid by the lien claimant. If the court determines that the
claim of lien is valid, the court shall issue an order so stating and may award
costs and reasonable attorneys' fees to the lien claimant to be paid by the
petitioner.
NEW
SECTION. Sec. 3. A new
section is added to chapter 60.70 RCW to read as follows:
Any
claim of lien against a federal, state, or local official or employee based on
the performance or nonperformance of that official's or employee's duties shall
be invalid unless accompanied by a specific order from a court of competent
jurisdiction authorizing the filing of such lien or unless a specific statute
authorizes the filing of such lien.
Sec.
4. RCW
60.70.030 and 1986 c 181 s 3 are each amended to read as follows:
(1)
No person has a duty to accept for filing or recording any claim of lien unless
the lien is authorized by statute or imposed by a court having jurisdiction
over property affected by the lien, nor does any person have a duty to reject
for filing or recording any claim of lien, except as provided in subsection
(2) of this section.
(2)
No person shall be obligated to accept for filing any claim of lien against a
federal, state, or local official or employee based on the performance or
nonperformance of that official's or employee's duties unless accompanied by a
specific order from a court of competent jurisdiction authorizing the filing of
such lien.
(3)
If a claim of lien as described in subsection (2) of this section has been
accepted for filing, the recording officer shall accept for filing a notice of
invalid lien signed and submitted by the assistant United States attorney
representing the federal agency of which the individual is an official or
employee; the assistant attorney general representing the state agency, board,
commission, department, or institution of higher education of which the
individual is an official or employee; or the attorney representing the school
district, political subdivision, or unit of local government of this state of
which the individual is an official or employee. A copy of the notice of
invalid lien shall be mailed by the attorney to the person who filed the claim
of lien at his or her last known address. No recording officer or county shall
be liable for the acceptance for filing of a claim of lien as described in subsection
(2) of this section, nor for the acceptance for filing of a notice of invalid
lien pursuant to this subsection.
