Curtis A. Welch
503.972.2529
 

Repair Work May Extend the Time for Recording a Washington Construction Lien

October 2017

Curtis A. Welch
503.972.2529

Published in the Oregon State Bar Construction Law Newsletter
October 2017

Determining the date on which a lien claimant's performance on a Washington construction project has ceased is often straightforward in the situation where the lien claimant stops performance and does not later resume performance. However, there are many cases where a lien claimant returns to the project after the bulk of his or her performance is complete, either to make repairs or replace defective materials. In that situation, a claimant may be unclear regarding the recording deadline for his or her construction lien.  Fortunately, a lien claimant is guided by longstanding and consistent rules established by Washington courts for such cases.   

A. Case law

One of the leading cases on this issue is Friis v.Brown, 37 Wn. 2d 457 (1950). In Friis, a contractor, Friis, worked between April 11th and June 4th to install a furnace in a house that was being constructed by another contractor. Friis did nothing else on the project until September 23rd, at which time he went to the house, made some adjustments, and started the furnace.

The owner failed to pay Friis for his installation work, and he recorded a lien.

The owner argued that Friis's last day of work was June 4th and that his lien was therefore untimely. The Washington Supreme Court rejected the owner's argument and held that the lien was timely. In its holding, the Court stated as follows:

Under the contract, it was the duty of Friis to see that the furnace was in proper operating condition.  His obligation was not fully performed until this was done. Although no new materials were installed September 23rd, Friis did spend considerable time there on that occasion, making adjustments and becoming satisfied that the furnace was in proper working order. This work was not done under a new and independent contract. It was not done for the purpose of prolonging the time for filing the lien, nor of renewing the right to file a lien which had been lost by a lapse of time, but was done in furtherance of the original contract. See Kirk v. Rohan, 29 Wn. 2d 432, 187 P.2d 607. We therefore hold that the last work on the contract was performed September 23rd and that the trial court erred in denying the foreclosure of the lien.

Friis, 37 Wn. 2d at 460.

In Kirk v. Rohan, supra, the contractor, Kirk, was hired to build a garage for Rohan. Kirk and his crew worked on the garage from August 5th until November 19th. Rohan then occupied the garage, and Kirk picked up his tools and equipment from the job site and took away some remaining lumber.

On February 1st of the next year, a heavy rain storm caused water to back up from the street and flood the garage. Rohan called Kirk's foreman, who came to the house on February 4th  along with other employees, and remedied the defect.

Rohan did not pay Kirk for the full price of construction of the garage, which led to Kirk recording a lien on May 3rd, using February 4th  as the last day. The owner refused to pay, arguing that the lien was untimely because it was not filed within 90 days from November 19th.

The Supreme Court held that the lien was timely, stating the test as follows:

The law is well settled in this state that work done or materials furnished under a new and independent contract, entered into after the original contract is completed, cannot be tacked onto the original contract to extend the time for filing a lien under the original contract, for labor performed and materials furnished.  However, if the work is done or materials furnished at the request of the owner to complete the original contract, or to remedy some defect in the work done, then the time for filing the lien would run from the last furnishing of labor and material, provided the work is not done for the purpose of prolonging the time for filing a lien, or renewing the right to file a lien which had been lost by a lapse of time.  In short, if the work done or material furnished at the request of the owner, is in furtherance of the original contract, then the time for filing the lien is extended.  We hold, under the evidence, that the work done February 4th was in furtherance of the original contract, and that the filing of the lien on May 3rd was timely.

Kirk, 29 Wn. 2d at 432

In another leading case, Rieflin v. Grafton, 63 Wash. 387, 389 (1911), a supplier provided windows and doors and other materials to a general contractor in connection with the new construction of a house. The supplier provided all of its materials between March 2nd and June 2nd, except for two or three panes of glass, which were delivered to the project on August 18th in order to replace defective glass that the supplier had previously supplied. The supplier was not paid, and subsequently recorded its lien on October 14th, within 90 days of the August 18th date. The owner argued that the lien was untimely.

The Supreme Court held that the lien was timely, stating as follows:

[t]he delivery of August 18 was made upon the demand of one of the owners of the property, for the purpose of correcting defects which he claimed existed. The good faith of the appellant in furnishing these items cannot be questioned. The time for filing the claim of lien had not then expired, and the material was not furnished for the purpose of prolonging the time for filing it, or for the purpose of renewing a right to a lien which had been lost by delay.

Finally, in another well-known case, Heaton v. Imus, 21 Wn. App. 914, 916 (1978) rev'd on other grounds, 93 Wn. 2d 249 (1980), the property owners hired a contractor, Heaton, to perform rehabilitation work on several of the owners' properties. The owners failed to pay Heaton for work on one of those properties and Heaton recorded a lien.

The owners claimed that Heaton's lien was untimely. At issue in that case was whether labor performed by Heaton and one of his employees on December 29th constituted the last day of performance or whether performance ceased much earlier. The work performed on December 29th consisted only of checking and bracing cables for cement building slabs.

The Court of Appeals held that the lien was timely, and that the 90-day lien period did not start until work was complete on December 29th.  The Court stated that "[w]hen additional work is undertaken to remedy a defect in work already completed, the time for filing a lien runs from the date of performance of the additional labor if the later work was not done (1) under a new and independent contract, (2) for the purpose of prolonging the time for filing the lien, or (3) in an attempt to renew the right to file a lien that had been lost by a lapse of time. Friis v. Brown, 37 Wn.2d 457, 460, 224 P.2d 330 (1950))."

B. Discussion

Several points are clear from the above case law and the related case law. The two key factors for determining whether repair work extends the time for recording a lien are whether the work was furnished at the request of the owner, and whether such work was done to complete the original contract. If those factors are met, a court is likely to find that the repair work extends the time for recording a construction lien. Further, meeting those two factors works to cancel out the potentially disqualifying factors referenced in the Heaton case, that is, whether the work was done under a new and independent contract, or for the purpose of prolonging the time for filing the lien, or in an attempt to renew the right to file a lien that had been lost by lapse of time.

As the Reiflin court pointed out, a lien claimant's good faith in performing the repair work typically cannot be questioned if the owner requested the work. The owner would have a difficult time arguing that the lien claimant performed the repair work just to prolong the time for filing the lien, if the owner or his or her agent requested that the repair work be performed.

Further, as demonstrated by each of the four cases cited above, even small amounts of repair work or replacement materials are sufficient to extend the time for recording a lien.

It is also clear that it does not matter if the lien claimant charges its customer for the repair work or for the replacement materials.

C. Conclusion

It should be noted that Oregon courts have their own interpretation of whether repair work extends the time for recording Oregon liens. In general, Oregon lien cases regarding this issue are not as liberal towards the lien claimant as are Washington cases. See, e.g., Pro Excavating v. Ziebart, 148 Or. App. 436, 441 (1997).  No matter what state's laws are involved however, a lien claimant needs to be vigilant in keeping track of their deadline to record a construction lien. The safest approach of course is for the lien claimant to calculate their deadline by reference to the date on the lien claimant's performance was substantially complete. Should a lien claimant fail to do so however, and the lien filing period from the date of substantial completion has passed, there is nevertheless still hope for the Washington lien claimant provided he or she has performed repair work which meets the factors discussed above.

Curtis Welch is Special Counsel with Sussman Shank LLP, focusing on construction law, civil litigation, real property law, and insurance law.  Contact him at (503) 227-1111 or cwelch@sussmanshank.com.

Related Practice Areas

Construction

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