When can a contractor in Washington file a lien? Well, the short answer is, the contractor can file a lien within 90 days of last performing work. See RCW § 60.04.091. And that sounds simple enough, but when a construction job drags on, or there’s punch list or warranty work involved, what counts as “performing work”? In other words, in the messy world that is real life, when do those 90 days actually begin?
Spoiler alert: Although TCO, Substantial Completion, and Final Completion are nice clean dates to work with, they’re rarely the date that starts the 90-day lien period running. This is because punch list and remedial work may extend the filing period beyond those dates. The question is whether the contractor’s work falls under the original contract, or if it’s work done to remedy some defect in the completed work.
Punchlist vs. Warranty Work
As with many things legal, the devil is in the details. And in this case, the relevant details really center around punchlist work versus warranty work.
When a contractor performs work to remedy a defect in uncompleted work, or to furnish work to complete the original contract, then that work will extend the filing deadline. In the industry, this is typically considered punchlist work. However, if a contractor’s work or materials fall under a new contract after the old one is completed, the new work will not be tacked onto the old contract to extend that lien filing deadline. See Kirk v. Rohan, 29 Wash.2d 432, 435 (Wash. 1974). Similarly, if a contractor’s primary reason for doing the work is to extend the filing deadline or to renew a deadline that has passed, then that work won’t extend the lien filing deadline.
So what about warranty work? The interaction of warranty work with lien filing deadlines can give many contractors and property owners problems. A good rule of thumb here is that warranty work after completion of the original contract (ie, Final Completion), does not extend the lien filing deadline as to work completed to achieve that Final Completion. Courts reason that the word “repair” in the lien statute does not include correcting the contractor’s own work, since technically contractors are not hired and paid to correct their own nonconforming work, so they are contractually obligated to correct it at no cost to the owner. See Brashear Elec., Inc. v. Norcal Props., LLC., 16 Wash.App.2d 741, 747-48 (Wash. Ct. App. 2021).
It’s A Fine Lien
This creates a very fine line when contractors near the end of a project, and may be performing both punch list and warrant work at the same time. It may also cause disputes between owners and contractors about what work truly is punch list work versus warranty work.
Skepsis Legal Solutions has extensive experience helping contractors place liens on property, as well as helping property owners remove liens on their construction projects. Whether you are a contractor or property owner, please don’t hesitate to schedule an initial consultation with Skepsis to discuss your lien rights and options today.
