ESHB 1708 -
By Senator Kohl-Welles
NOT CONSIDERED 05/25/2011
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1 A new section is added to chapter 60.04 RCW
to read as follows:
(1) The legislature finds that persons furnishing labor,
professional services, materials, or equipment for the improvement of
real property routinely rely upon the enforcement of their lien rights
to secure payment for their work. This chapter is intended to provide
a simple, reliable, and uniform mechanism for preservation of lien
rights and pursuit of lien claims. Yet controversy has arisen as to
the intent of certain provisions of this chapter.
(2) The legislature therefore intends to clarify that the use of
the "safe harbor" form in RCW 60.04.091 is sufficient to state a lien
claim, and thereby, address and resolve the current controversy. The
legislature also intends to adopt an updated form that is sufficient to
state a lien claim and will continue to provide a simple, reliable, and
uniform mechanism for the future. Finally, the legislature intends to
clarify that civil procedures generally available to the courts in
regular civil actions are also available to the courts in lien
foreclosure actions.
Sec. 2 RCW 60.04.091 and 1992 c 126 s 7 are each amended to read
as follows:
(1) This section applies only to lien claims based on an
improvement commenced by a potential lien claimant on or after June 1,
1992, and recorded before January 1, 2012.
(2) Every person claiming a lien under RCW 60.04.021 shall file for
recording, in the county where the subject property is located, a
notice of claim of lien not later than ninety days after the person has
ceased to furnish labor, professional services, materials, or equipment
or the last date on which employee benefit contributions were due. The
notice of claim of lien:
(((1))) (a) Shall state in substance and effect:
(((a))) (i) The name, phone number, and address of the claimant;
(((b))) (ii) The first and last date on which the labor,
professional services, materials, or equipment was furnished or
employee benefit contributions were due;
(((c))) (iii) The name of the person indebted to the claimant;
(((d))) (iv) The street address, legal description, or other
description reasonably calculated to identify, for a person familiar
with the area, the location of the real property to be charged with the
lien;
(((e))) (v) The name of the owner or reputed owner of the property,
if known, and, if not known, that fact shall be stated; and
(((f))) (vi) The principal amount for which the lien is claimed.
(((2))) (b) Shall be signed by the claimant or some person
authorized to act on his or her behalf who shall affirmatively state
they have read the notice of claim of lien and believe the notice of
claim of lien to be true and correct under penalty of perjury, and
shall be acknowledged pursuant to chapter 64.08 RCW. If the lien has
been assigned, the name of the assignee shall be stated. Where an
action to foreclose the lien has been commenced such notice of claim of
lien may be amended as pleadings may be by order of the court insofar
as the interests of third parties are not adversely affected by such
amendment.
(3) Notwithstanding subsection (2)(a) and (b) of this section, a
claim of lien substantially in the following form shall be sufficient:
. . . . . ., claimant, vs . . . . . ., name of person indebted to claimant:
Notice is hereby given that the person named below claims a lien pursuant to chapter ((64.04)) 60.04 RCW. In support of this lien the following information is submitted:
1. NAME OF LIEN CLAIMANT: . . . . . . . . . . . .
TELEPHONE NUMBER: . . . . . . . . . . . .
ADDRESS: . . . . . . . . . . . .
2. DATE ON WHICH THE CLAIMANT BEGAN TO PERFORM LABOR, PROVIDE PROFESSIONAL SERVICES, SUPPLY MATERIAL OR EQUIPMENT OR THE DATE ON WHICH EMPLOYEE BENEFIT CONTRIBUTIONS BECAME DUE:
. . . . . . . . . . . .
3. NAME OF PERSON INDEBTED TO THE CLAIMANT:
. . . . . . . . . . . .
4. DESCRIPTION OF THE PROPERTY AGAINST WHICH A LIEN IS CLAIMED (Street address, legal description or other information that will reasonably describe the property): . . . . . . . . . . . .
. . . . . . . . . . . .
. . . . . . . . . . . .
. . . . . . . . . . . .
5. NAME OF THE OWNER OR REPUTED OWNER (If not known state "unknown"): . . . . . . . . . . . .
6. THE LAST DATE ON WHICH LABOR WAS PERFORMED; PROFESSIONAL SERVICES WERE FURNISHED; CONTRIBUTIONS TO AN EMPLOYEE BENEFIT PLAN WERE DUE; OR MATERIAL, OR EQUIPMENT WAS FURNISHED: . . . . . . . . . . . .
. . . . . . . . . . . .
7. PRINCIPAL AMOUNT FOR WHICH THE LIEN IS CLAIMED IS:
. . . . . . . . . . . .
8. IF THE CLAIMANT IS THE ASSIGNEE OF THIS CLAIM SO STATE HERE: . . . . . . . . . . . .
. . . . . . . . . . . .
NEW SECTION. Sec. 3 A new section is added to chapter 60.04 RCW
to read as follows:
(1) This section applies only to lien claims recorded on and after
January 1, 2012.
(2) Every person claiming a lien under RCW 60.04.021 shall file for
recording, in the county where the subject property is located, a
notice of claim of lien not later than ninety days after the person has
ceased to furnish labor, professional services, materials, or equipment
or the last date on which employee benefit contributions were due.
(3) The notice of claim of lien:
(a) Shall state in substance and effect:
(i) The name, telephone number, and address of the claimant;
(ii) The first and last date on which the labor, professional
services, materials, or equipment was furnished or employee benefit
contributions were due;
(iii) The name of the person indebted to the claimant;
(iv) The street address, legal description, or other description
reasonably calculated to identify, for a person familiar with the area,
the location of the real property to be charged with the lien;
(v) The name of the owner or reputed owner of the property, if
known, and, if not known, that fact shall be stated;
(vi) The principal amount for which the lien is claimed;
(vii) If the lien has been assigned, the name of the assignee; and
(viii) If the claim of lien is signed by a person other than the
claimant, the person's authority to act on the claimant's behalf.
(b) Shall be signed before a notary public by the claimant or a
person authorized to act on the claimant's behalf who shall
affirmatively state that he or she has:
(i) Read the claim of lien;
(ii) Believes the claim of lien to be true and correct under
penalty of perjury; and
(iii) Believes the claim of lien is not frivolous, is made with
reasonable cause, and is not clearly excessive.
(c) Shall be acknowledged and certified as set forth in subsection
(4) of this section.
(4) Notwithstanding subsection (3) of this section, a claim of
lien, acknowledgment, and certificate substantially in the following
form shall be sufficient:
. . . . . ., claimant, vs . . . . . ., name of person indebted to claimant:
Notice is hereby given that the claimant named below asserts a lien pursuant to chapter 60.04 RCW. In support of this lien the following information is submitted:
1. NAME OF LIEN CLAIMANT: . . . . . . . . . . . .
TELEPHONE NUMBER: . . . . . . . . . . . .
ADDRESS: . . . . . . . . . . . .
2. THE FIRST DATE ON WHICH LABOR, PROFESSIONAL SERVICES, MATERIALS, OR EQUIPMENT WAS FURNISHED BY THE CLAIMANT OR EMPLOYEE BENEFIT CONTRIBUTIONS WERE DUE TO THE CLAIMANT:
. . . . . . . . . . . .
3. NAME OF PERSON INDEBTED TO THE CLAIMANT:
. . . . . . . . . . . .
4. DESCRIPTION OF THE PROPERTY AGAINST WHICH A LIEN IS CLAIMED (Street address, legal description or other information that will reasonably describe the property): . . . . . . . . . . . .
. . . . . . . . . . . .
. . . . . . . . . . . .
. . . . . . . . . . . .
5. NAME OF THE OWNER OR REPUTED OWNER (If not known state "unknown"): . . . . . . . . . . . .
6. THE LAST DATE ON WHICH LABOR, PROFESSIONAL SERVICES, MATERIALS, OR EQUIPMENT WAS FURNISHED BY THE CLAIMANT OR EMPLOYEE BENEFIT CONTRIBUTIONS WERE DUE TO THE CLAIMANT:
. . . . . . . . . . . .
7. PRINCIPAL AMOUNT FOR WHICH THE LIEN IS CLAIMED IS:
. . . . . . . . . . . .
8. IF THE CLAIMANT IS THE ASSIGNEE OF THIS CLAIM SO STATE HERE: . . . . . . . . . . . .
. . . . . . . . . . . .
9. IF THE PERSON SIGNING THIS CLAIM OF LIEN IS NOT THE CLAIMANT, BUT IS AUTHORIZED TO ACT ON THE CLAIMANT'S BEHALF, STATE THE PERSON'S NAME AND REPRESENTATIVE CAPACITY:
NAME: . . . . . . . . . . . .
REPRESENTATIVE CAPACITY (e.g., officer or employee of claimant; attorney or agent; representative of lien filing service; administrator, representative, or agent of trustees of employee benefit plan): . . . . . . . . . . . .
Sec. 4 RCW 60.04.171 and 1992 c 126 s 11 are each amended to read
as follows:
The lien provided by this chapter, for which claims of lien have
been recorded, may be foreclosed and enforced by a civil action in the
court having jurisdiction in the manner prescribed for the judicial
foreclosure of a mortgage, and the court rules ordinarily applicable to
civil actions shall apply to that action. The court shall have the
power to order the sale of the property. In any action brought to
foreclose a lien, the owner shall be joined as a party. The interest
in the real property of any person who, prior to the commencement of
the action, has a recorded interest in the property, or any part
thereof, shall not be foreclosed or affected unless they are joined as
a party.
A person shall not begin an action to foreclose a lien upon any
property while a prior action begun to foreclose another lien on the
same property is pending, but if not made a party plaintiff or
defendant to the prior action, he or she may apply to the court to be
joined as a party thereto, and his or her lien may be foreclosed in the
same action. The filing of such application shall toll the running of
the period of limitation established by RCW 60.04.141 until disposition
of the application or other time set by the court. The court shall
grant the application for joinder unless to do so would create an undue
delay or cause hardship which cannot be cured by the imposition of
costs or other conditions as the court deems just. If a lien
foreclosure action is filed during the pendency of another such action,
the court may, on its own motion or the motion of any party,
consolidate actions upon such terms and conditions as the court deems
just, unless to do so would create an undue delay or cause hardship
which cannot be cured by the imposition of costs or other conditions.
If consolidation of actions is not permissible under this section, the
lien foreclosure action filed during the pendency of another such
action shall not be dismissed if the filing was the result of mistake,
inadvertence, surprise, excusable neglect, or irregularity. An action
to foreclose a lien shall not be dismissed at the instance of a
plaintiff therein to the prejudice of another party to the suit who
claims a lien."
ESHB 1708 -
By Senator Kohl-Welles
NOT CONSIDERED 05/25/2011
On page 1, line 1 of the title, after "liens;" strike the remainder of the title and insert "amending RCW 60.04.091 and 60.04.171; and adding new sections to chapter 60.04 RCW."
EFFECT: (1) Legislative findings and intent. Adds language
specifying that, by clarifying that the form is sufficient to state a
lien claim, the Legislature intends to address and resolve the current
controversy. Also adds language specifying that the Legislature
intends to adopt an updated form for the future. Does not include
language describing retroactive corrections to technical errors and
defects. Also does not include language describing liberal
construction of designated statutes.
(2) Lien claims recorded before January 1, 2012. Amends the
current section describing lien claims and provides a form. The
amended section:
(a) Applies to lien claims recorded before January 1, 2012;
(b) Does not change the description of lien claims; and
(c) Clarifies that, notwithstanding the description, a lien claim
in the specified form is sufficient.
(3) Lien claims recorded on or after January 1, 2012. Adds a new
section describing lien claims and provides a form. The new section:
(a) Applies to lien claims recorded on or after January 1, 2012;
(b) Makes the description and the form consistent;
(c) Specifies that, if the lien claim is signed by a person other
than the claimant, the claim of lien must state the person's authority
to act on the claimant's behalf;
(d) Specifies that, notwithstanding the description, a lien claim
in the specified form is sufficient; and
(e) Includes forms for acknowledgment and certification in
individual and representative capacities.
(4) Liberal construction. Does not amend the section requiring
that certain provisions of the lien law be liberally construed.