Is the 90-Day Deadline to Record a Claim of Lien Extended by a Contractor Performing Warranty Work?

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Is the 90-day deadline to record a claim of lien extended by a contractor performing warranty work? In Brashear Electric, Inc. v. Norcal Properties, LLC, Division Three of the Washington Court of Appeals answered the question, holding that warranty work does not extend the 90 days to record a claim of lien.

I. Facts

Brashear Electric, Inc. was a subcontractor on two adjacent projects—one owned by Norcal Properties, and the other by Blue Bridge Properties. Both projects had essentially identical contract terms, including a one year warranty. Brashear completed work on the Norcal project in June 2017 and the Blue Bridge project in September 2017.

In January 2018, more than 90 days after Brashear’s last work on either project, a leak was discovered in the Norcal building’s roof. The leak was initially suspected to relate to Brashear’s installation of an AHU, and the prime contractor directed Brashear to address the issue accordance with the warranty provision. A Brashear electrician caulked around the leak as a temporary fix, and also repaired a loose light connection on the Blue Ridge building. However, closer inspection revealed that Brashear was not responsible for the roof leak.

Following the warranty work, Brashear promptly recorded liens against the Norcal and Blue Bridge properties for $12,830.81 and $36,278.50, respectively, and then filed an action to foreclose on the liens. Norcal and Blue Bridge sought summary judgment, arguing that warranty work does not extend the 90-day period to record a claim of lien. The trial court ruled in their favor, and Brashear appealed.

II. Analysis

Division Three affirmed the trial court’s ruling. Drawing on both the text and purpose of Washington’s lien statute, the court held that labor performed to remedy one’s own nonconforming work is not lienable, and thus that warranty work does not extend the 90-day period in which to record a lien claim.

A. Strict Versus Liberal Construction of Washington’s Lien Statutes  

To analyze whether warranty work extends the 90-day deadline to record a lien, the Brashear court first addressed whether the issue is controlled by a strict or liberal construction of the lien statute. Williams v. Athletic Field, Inc., 172 Wn.2d 683 (2011), the seminal case on this point, provides that the lien statute is to be construed strictly to determine the threshold question of whether persons or services are protected by the lien statute and, if the statute is applicable, construed liberally in favor of protection for contractors. See id. at 696.

The question of whether warranty work extends the 90-day deadline boils down to whether the services were protected by the lien statute and the Brashear court therefore applied a strict construction of the lien statute.

B. Is Warranty Work Protected by the Lien Statutes?  

The deadline to record a lien runs 90 days after the claimant stops furnishing “labor, professional services, materials, or equipment.” RCW 60.04.091. Furnishing labor is defined as “any labor . . . for the improvement of real property.” RCW 60.04.011(4). And “improvement” includes “[c]onstructing, altering, repairing, remodeling, demolishing, clearing, grading, or filling in, of, to, or upon” real property. RCW 60.04.011(5)(a) (emphasis added).

Turning to whether Brashear was entitled to the protection of the lien statute, the court observed that while “warranty work certainly involved labor,” the question was whether the warranty work involved “repairing” real property. Or more directly, “does ‘repairing’ extend to correcting one’s own nonconforming work?” For the following three reasons, the Brashear court determined it does not.

First, the court considered the dictionary definition of “repair,” which is “to restore by replacing a part or putting together what is torn or broken.” While this definition strongly suggests that the thing to be “restored” once worked properly, “nonconforming work” suggests the opposite—that the work was never properly performed to begin with. Thus, the court held, strict construction of the word “repairing” does not encompass correcting one’s own nonconforming work.

Second, the principle of “noscitur a sociis” provides that a single word in a statute should not be read in isolation. And when applied to words in a series, courts should consider the “meaning naturally attaching to them from the context” and adopt a definition that best harmonizes each word with those surrounding it. The court held that the word “repairing,” along with the series of words surrounding it—constructing, altering, remodeling, demolishing, clearing, grading, or filling in—is best harmonized by recognizing that contractors are hired and paid to do each of these things. Contractors are not, however, hired and paid to correct their own nonconforming work, suggesting that warranty work is not subject to the protections of the lien statute.

Lastly, the court applied the rule that a statute must be construed to effect its legislative purpose, while avoiding unlikely, absurd, or strained consequences. Because a lien is intended to secure payment for money owed, and a contractor is not paid to correct nonconforming work, the court held that warranty work is not lienable.

Interestingly, despite focusing on the fact that warranty work is intended to remedy one’s own nonconforming work, the fact that Brashear was not ultimately responsible for the roof leak had no apparent impact on the court’s analysis.

III. Conclusion

The Brashear opinion is plain spoken—“We strictly construe ‘repairing’ to exclude a contractor’s correction of its own work and conclude that performing warranty work does not extend the 90 days to record a claim of lien.” When advising clients as to the 90 day lien recording deadline, construction law practitioners must now analyze whether the work was performed under a warranty obligation, whether it was to correct non-conforming work, and whether the contractor was entitled to payment for the work.

For more information, contact attorney Bryce Sinner at bryce.sinner@landerholm.com.

The above should not be construed as specific legal advice and is intended for general information purposes only.

ConstructionVeronica Whitney