[WSBARP] Contractor Liens in times of Covid-19

[John McCrady]

Interesting discussion, and Important issues.

When I consider that  RCW 65.04.015 defines "filing" as:
File," "filed," or "filing" means the act of delivering or transmitting electronically an instrument to the auditor or recording officer for recording into the official public records
And "Record" is defined as:
"Record," "recorded," or "recording" means the process, such as electronic, mechanical, optical, magnetic, or microfilm storage used by the auditor or recording officer after filing to incorporate the instrument into the public records.
It gives a different slant to the language in RCW 65.08.070(1):
"An instrument is deemed recorded the minute it is filed for record."

It sure seems to me that instruments become public record the minute they are delivered to the Auditor for recording into the public records.


John McCrady
Counsel
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of scott at scottgthomaslaw.com
Sent: Wednesday, November 18, 2020 2:19 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Contractor Liens in times of Covid-19

Not sure how helpful this may be, but you might consider drawing an analogy to the UCC (Gasp!) and in particular RCW 62A.9A-516.


From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Samuel M. Meyler
Sent: Wednesday, November 18, 2020 2:10 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Contractor Liens in times of Covid-19

Unfortunately, the Recorder's Office has confirmed that the date of recording will be the date that the document is actually processed rather than the day that it is delivered.


Samuel M. Meyler
Meyler Legal, PLLC
1700 Westlake Ave. N., Ste. 200
Seattle, Washington 98109
Tel:  206.876.7770
Fax:  206.876.7771
Email:  samuel at meylerlegal.com<mailto:samuel at meylerlegal.com>

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Douglas Scott
Sent: Wednesday, November 18, 2020 1:42 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Contractor Liens in times of Covid-19

My experience is that once such a Lien makes it to the recorder's office it is date stamped.  Then it must be processed into the records which is the reason for the delay. Hopefully your Lien will be date stamped.

DOUGLAS W. SCOTT
Rainier Legal Advocates|LLC

465 Rainier Blvd. N., Suite C
Issaquah, Washington 98027
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425.392.2829 (fax)



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On Wed, Nov 18, 2020 at 1:21 PM Daniel Berner <dberner at phillipsburgesslaw.com<mailto:dberner at phillipsburgesslaw.com>> wrote:
Interesting scenario, which is usually a bad answer for a client.

Lien statute is strictly construed so there is an argument that failure to comply results in loss of lien rights.  However, if your client can show substantial compliance and a good faith effort then I think you have a strong argument for a relaxing of the lien statute's strict compliance based on King County's failure to record timely based on COVID impacts.  Was the property owner served or provided with a certified copy of the unrecorded claim of lien? If so, then I think you have a stronger chance of maintaining the lien claim.

I'd like to hear others' thoughts or experiences regarding this scenario.

Daniel Berner
Attorney
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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Samuel M. Meyler
Sent: Wednesday, November 18, 2020 11:22 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Contractor Liens in times of Covid-19

Listmates,

Here is the scenario... Contractor performed work, didn't get paid and sent a Claim of Lien for recording with tracking.  Tracking confirms that the Claim of Lien was delivered to the King County recorder's office prior to the expiration of the 90 day period for recording but it has not been processed yet.  King County indicates that, as of today, they are processing materials that they received on 9/24/2020 (Wow!).

With County Recorder offices backed up, materials sent by mail are not being processed/recorded for weeks after the Recorder receives them in some cases.  If a Claim of Lien was delivered to the Recorder's Office prior to the expiration of the 90 day window but is not processed until many weeks after, is there any basis for the contractor to argue that the 90 day limitation period was stayed or that the recording should be retroactive to the date of delivery?  Is there any authority on this?

Thanks for your input!

Sam

Samuel M. Meyler
Meyler Legal, PLLC
1700 Westlake Ave. N., Ste. 200
Seattle, Washington 98109
Tel:  206.876.7770
Fax:  206.876.7771
Email:  samuel at meylerlegal.com<mailto:samuel at meylerlegal.com>

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