[WSBARP] Lien rights: Curing failure to provide disclosure under RCW 18.27.114?

[Rick Hoss]

Daniel is right as usual. If someone calls, the area L&I construction
compliance inspector will issue the contractor a $500 infraction citation
for a violation of the RCW 18.27.114 Notice to Customer. Smart contractors
put this Notice right in their contracts, together with the RCW 64.50 Notice
of Claim that requires 45 days notice and opportunity to cure before a
lawsuit can be filed. So your contractor client may not be able to file a
lien but you can still help improve their contract forms. 

 

Even with lien rights preserved first check the property title to make sure
any lien position is economically viable. Smart suppliers and builders
document the earliest start work or start delivering material dates to
improve their lien position in the event it becomes necessary. So your
contractor can use new forms and new procedures to improve its position for
future projects and foreclosing the lien is required. One area building
supplier documents delivery of a few sticks of lumber to the project site
long before the material package is delivered - liens relate back to date of
first delivery or first work.


RCW 18.27.350 <http://app.leg.wa.gov/RCW/default.aspx?cite=18.27.350>
Violations-Consumer Protection Act.


The consumers of this state have a right to be protected from unfair or
deceptive acts or practices when they enter into contracts with contractors.
The fact that a contractor is found to have committed a misdemeanor or
infraction under this chapter shall be deemed to affect the public interest
and shall constitute a violation of chapter 19.86
<http://app.leg.wa.gov/RCW/default.aspx?cite=19.86>  RCW. The surety bond
shall not be liable for monetary penalties or violations of chapter 19.86
<http://app.leg.wa.gov/RCW/default.aspx?cite=19.86>  RCW.

 


See also RCW 18.27.005
<http://app.leg.wa.gov/RCW/default.aspx?cite=18.27.005>   Strict
enforcement.


This chapter shall be strictly enforced. Therefore, the doctrine of
substantial compliance shall not be used by the department in the
application and construction of this chapter. Anyone engaged in the
activities of a contractor is presumed to know the requirements of this
chapter.

 

 

 

 

From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Daniel Berner
Sent: Wednesday, July 10, 2019 11:38 AM
To: wsbarp
Subject: Re: [WSBARP] Lien rights: Curing failure to provide disclosure
under RCW 18.27.114?

 

David,

 

Yes, failure to provide the notice to customer document is a fatal flaw to a
lien claim unless one of the exceptions found in RCW 18.27.114 applies.

 

Further, if a claim of lien is recorded without providing the notice to
customer document, then the lien claimant is susceptible to a frivolous lien
motion and also constitutes a per se violation of the consumer protection
act which both allow for an award of attorney fees and costs.

 

Best,

Daniel Berner

  _____  

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
on behalf of David Faber <david at faberfeinson.com>
Sent: Wednesday, July 10, 2019 11:14:41 AM
To: wsbarp
Subject: [WSBARP] Lien rights: Curing failure to provide disclosure under
RCW 18.27.114? 

 

There is no way to cure the failure to provide a disclosure under RCW
18.27.114 and to recover the right to file a lien under RCW 60.04 after work
has commenced, correct? Reviewing the statute and A.W.R. Constr., Inc. v.
L&I, 152 Wn.App. 479 appears dispositive: if the job does not fall into one
of the exceptions for disclosure under 18.27.114, the failure to provide a
disclosure constitutes a loss of the right to lien by a contractor full
stop, but I want to make absolutely certain that I'm not mistaken in my read
of the statute and case law on point. 

 

Best,

David J. Faber

Faber Feinson PLLC

210 Polk Street, Suite 1

Port Townsend, WA 98368
(360) 379-4110

 

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