A few years ago, I wrote a blog post to address a very frequently asked question, which is “What costs can I include in a mechanics lien?” Regardless of where you’re filing your mechanics lien, you are always required to set out in the lien document the amount of your claim. Companies typically have the cost of the mechanics lien or attorney fees associated with the debt, and they wonder whether they should (and can) include these amounts in the mechanics lien claim.
The answer varies from state to state, and my blog post from 2010 on the subject discussed a general answer. This post focuses on the rules in the state of Washington.
In Washington, you should not and can not include costs and attorney fees in the mechanics lien claim amount. When you set out within the mechanics lien document the amount due and owing to you, you should only claim the principal amount due and owing to you for the materials and labor furnished to the project. Including other incurred costs or attorneys fees in the mechanics lien claim may render your claim “exaggerated,” and possibly “frivolous,” which in either event could result in the invalidation of your claim.
While you cannot include these amounts within the mechanics lien document itself, you do have the right to recover mechanics lien costs and attorneys fees. The property owner and other debtors owe these costs to you, it’s just not allowed to be a component of your lien claim. the amounts are recoverable through any litigation required to enforce the Washington mechanics lien clam.
There are a few things to note about recovering attorney fees in association with any mechanics lien claim in Washington.
First, if you fail to notify the property owner of the mechanics lien filing within 14 days of filing, you will waive your right to recover attorney fees. It’s very important to have your mechanics lien claim timely served on the property owner, and to maintain proof of this service (i.e. affidavit of service, returned mail signature, etc.). One of the benefits to filing your Washington mechanics lien with Zlien is that Zlien takes care of serving the property owner and maintaining proof of service.
Second, if you find yourself in an appeal, there is a bizzarre Washington appeals case holding that you’re only entitled to recover attorneys fees spent on the appeal if you include a section in your opening appeal brief that is dedicated to the issue of attorney fees. Estate of Haselwood v. Bremerton Ice Arena, Inc.
In addition to attorney fees being made specifically recoverable by Washington law, the statutes also make direct mention of certain costs you may incur when filing a mechanics lien. These include, as per RCW § 60.04.181:
[T]he moneys paid for recording the claim of lien, costs of title report, bond costs, and attorneys’ fees and necessary expenses incurred by the attorney…
May folks ask me whether Zlien’s charge is a recoverable charge, and I typically answer that this varies on a state-by-state basis. Since Zlien’s fee is an expense for recording, and includes pulling a title report, it appears that the fee would be recoverable in Washington based on RCW § 60.04.181.