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.
