You’re a Washington contractor or property owner, and someone has filed a lien on your construction project. You disagree with the amount of the lien, or you think the lien is flat-out invalid.

Now what?

Putting aside the expensive option to bond the lien (deposit money with the court in exchange for a lien release, and then litigating over who is entitled to the money), Washington law allows any interested party to file an action in civil court to challenge the validity of a construction or mechanics lien.

The action, however, carries great risk and reward.

The Reward

If you win the action and the lien is removed, you may be possibly rewarded with the cost of your attorney’s fees and legal expenses. To get such award from the court, you’ll not only need to prove that the lien is invalid, but you’ll also need to prove that the lien was frivolous.

Be careful here…while you may get the lien removed and declared invalid…it still may not be considered frivolous. Washington courts have stated that while all frivolous liens are invalid, not all invalid liens are frivolous. A frivolous lien requires that it have no reasonable basis (which can be a rare event).

In this instance you won’t lose anything. In fact, the lien will be deemed invalid and you’ll win because the lien will be removed from public records. However, you won’t recover your attorneys fees and legal expense without convincing the court that the lien was more than invalid, and was frivolous.

The Risk

If you lose the action and the lien is upheld, the Washington statutes mandate that the lien claimant be awarded its attorney’s fees and legal expense incurred in the lien dispute proceeding. If this occurs, not only will the lien continue to exist and the debt still be arguably owed to the claimant, but you would be responsible to pay the legal expenses and attorney’s fees incurred by the claimant (which could be in the thousands).

This is quite a risk, and unlike the circumstances surrounding your potential reward, no further proof is required from the claimant to get its attorney’s fees. If the lien is upheld, the attorney’s fees are awarded.

Know Your Chances

When faced with a lien, get to know your chances of victory. Contacting a construction lawyer to discuss the liens validity is a good first step, and then responsibly make a decision about how to proceed.

One problem for GCs and owners in lien dispute proceedings is that courts will mostly look to the procedure and quality of the lien only in such a proceeding, and not to the merits of the amount claimed. In other words, if you think the lien is invalid b/c it doesn’t follow the statute, was not filed on time, or has some other type of obvious error – the lien will likely be deemed invalid. However, if you think the lien is invalid because the claimant is demanded $45,000 when they are only entitled to $35,000 because you claim they owe back-charges, be prepared for the court to uphold the validity of the lien and leave the discrepancy to be addressed at trial.

Learn more about disputing a lien in Washington.

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