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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
DENISE BRACKETT WOODLEY, ) No. 77352-6-I
Respondent,
v.
STYLE CORPORATION doing ) business as SERVPRO OF ) SHORELINE/WOODINVILLE, ) PUBLISHED OPINION lien claimant, ) ) FILED: February 11,2019 Appellant.
VERELLEN, J. —A materialmen’s lien must be released pursuant to
RCW 60.04.08 1 if it is frivolous and made without reasonable cause. Because
Style Corporation’s (Servpro) lien presents debatable issues of law and fact, it is
not frivolous and should not have been released.
A lien is clearly excessive under RCW 60.04.08 1 when the amount
claimed on the face of the lien is unquestionably far greater than the usual or
agreed amount. Because Servpro’s lien clouds the title to Denise Brackett
Woodley’s condominium unit for the entire $183,945.09 listed on its face for
services provided to Woodley worth, at most, $6,001.90, the trial court correctly
concluded the lien was clearly excessive. No. 77352-6-112
Therefore, we reverse in part, affirm in part, and remand for further
proceedings consistent with this opinion.
FACTS
Denise Brackett Woodley owns unit 208 in building E of the Bellevue Park
condominium complex. Because of ongoing roof construction and a rainstorm,
water leaked into Woodley’s unit and 19 others on September 17, 2016.1 That
day, Bellevue Park’s property management company, MacPherson’s Property
Management, called Servpro and asked it to clean up the water and conduct
restoration work. MacPherson’s signed a work authorization contract with
Servpro on the behalf of “Bellevue Park Condos,” and Servpro began placing
drying equipment in affected units.
Woodley’s unit was occupied by a tenant who gave Servpro permission to
enter and set up its equipment. Interior surfaces in the unit’s living room, dining
room, bedrooms, and bathroom needed to be dried. Three days later, Servpro
returned to monitor drying progress and to perform asbestos testing.
Woodley did not speak with Servpro or her tenant prior to the work
completed between September 17 and September 20. Servpro’s equipment
remained in Woodley’s unit until mid-November.
The Bellevue Park condominium owners association planned to pay
Servpro for its services and recoup the money from unit owners via a special
1 The entire condominium complex consists of 78 units across multiple buildings.
2 No. 77352-6-1/3
assessment. But the association failed to pay because it was trying
unsuccessfully to obtain the money from the roofing company.
Servpro filed a single lien for the total value of its services on January 26,
2017. The lien claimed a debt of $183,945.09. The lien named the association
as the indebted person but recited that it applied to the 20 specific units and a
common storage area where Servpro provided services. The lien also names
each owner of the 20 units but does not allocate a specific portion of the total
debt to each unit.
Pursuant to RCW 60.04.081, Woodley filed a motion to release the lien.
Finding it both frivolous and clearly excessive, the court released the lien. The
court denied a motion for reconsideration.
Servpro appeals.
ANALYSIS
When evaluating release or reduction of a lien under RCW 60.04.081, we
review the court’s legal conclusions de novo and review factual findings for
substantial evidence.2
A materialmen’s lien is authorized for “any person furnishing labor,
professional services, materials, or equipment for the improvement of real
property. . . for the contract price of labor, professional services, materials, or
equipment furnished at the instance of the owner, or the agent or construction
2 Intermountain Elec., Inc. v. G-A-T Bros. Const., Inc., ll5Wn. App. 384, 390, 62 P.3d 548 (2003) (citing W.R.P. Lake Union Ltd. P’ship v. Exterior Servs., lnc~ 85Wn. App. 744, 749-50, 934 P.2d 722 (1997)).
3 No. 77352-6-1/4
agent of the owner.”3 After a claimant files a lien, ROW 60.04.081 authorizes a
“narrow and limited”4 ‘summary proceeding” to determine whether the lien “is
frivolous and made without reasonable cause or clearly excessive.”5 A court
must release the lien “if frivolous and made without reasonable cause” or reduce
the lien if “clearly excessive.”6 This ‘trial by affidavit” should not be a substitute
for trial on the merits where the facts “do not clearly indicate” the lien is frivolous
or clearly excessive.7
Servpro’s Lien Is Not Frivolous
A lien is frivolous if “improperly filed beyond legitimate dispute” and “so
devoid of merit that it has no possibility of succeeding.”8 Even if a lien is invalid,
it may not be frivolous.9 This high standard exists to ensure contractors and
laborers are not deprived of their right to trial on a legitimate lien claim.10 Thus, a
lien is not frivolous if it presents debatable issues of law and fact.11
~ ROW 60.04.021. ~ Andries v. Covey, 128 Wn. App. 546, 551, 113 P.3d 483 (2005). ~ Williams v. Athletic Field, Inc., 172 Wn.2d 683, 699, 261 P.3d 109 (2011) (quoting W.R.P., 85 Wn. App. at 749); ROW 60.04.081. 6 ROW 60.04.081 (4).
~ W.R.P., 85 Wn. App. at 750, 753. 8Williams, 172 Wn.2d at 699 (internal quotation marks omitted) (quoting Intermountain Elec., 115 Wn. App. at 394). ~ S.D. Deacon Cow. of Wash. v. Gaston Bros. Excavating, Inc., 150 Wn. App. 87, 91, 206 P.3d 689 (2009). 10 Id. at 89.
11See W.R.P., 85 Wn. App. at 752 (“Because this lien presents debatable issues of law and fact, it does not satisfy the requirements of frivolous and without reasonable cause justifying its release in this summary procedure.”).
4 No. 77352-6-115
Woodley makes several arguments to explain why Servpro’s lien is
frivolous, but none meet this high standard.
First, Woodley argues Servpro’s lien is frivolous because she never
directly authorized any of Servpro’s work after September 26, 2016. Servpro
agrees that Woodley herself never directly authorized its services. But
Wood ley’s brief does not contest, and she confirmed at oral argument that she
views the association as having actual authority under the condominium
declaration for three days following the roof leak to arrange for Servpro’s
emergency repairs to her unit. Woodley’s admission creates debatable issues of
law and fact around the scope of agency authorized by the condominium
declaration.12
Second, Woodley contends the lien is frivolous because it was filed after
the 90-day statutory limitations period lapsed. The court found Servpro stopped
providing beneficial services to Woodley on September 21, 2016, and filed its lien
more than 90 days later on January 26, 2017. Servpro argues the limitations
period did not lapse before filing because it continued to provide beneficial
services to Woodley through November 17, 2016, when it removed its equipment
from her unit. But even though an untimely lien is presumptively invalid, that
does not mean the lien is frivolous.
12 See RCW 60.04.021. However, Servpro’s lien would have been frivolous had there been no agency relationship at all between Woodley and the association because none of Servpro’s work would have been furnished “at the instance of the owner.” RCW 60.04.021.
5 No. 77352-6-1/6
A materialmen’s lien must be filed ‘not later than [90] days” after the lien
claimant stops providing services.13 This “strict time limit”14 is “a period of
limitation,” so “no action to foreclose a lien shall be maintained” if the claimant
failed to file within the limitations period.15 A lien filed after the 90-day limit is
presumptively invalid.16 Any provision of supplies or services at the owner’s
request extends the limitation period for another 90 days.17
In Intermountain Electric, Inc. v. G-A-T Brothers Construction, Inc., a lien
was invalid because it was filed 94 days after the lien claimant, an electrician,
stopped providing beneficial services to a general contractor.18 On June 6, 2000,
the electrician performed its last active work for the contractor and left its
construction trailer at the construction site in anticipation of future work.19 The
electrician filed a lien 94 days later but argued its lien was valid because it was
still furnishing equipment to the general contractor at the time it filed.2° Because
13 RCW 60.04.091. 14Inland Empire Dry Wall Supply Co. v. W. Sur. Co., 189 Wn.2d 840, 844, 408 P.3d 691 (2018). 15 RCW6O.04.091.
16 RCW 60.04.091; see Intermountain Elec., 115 Wn. App. at 391 (“Intermountain’s last day of work was June 6, 2000. The lien was filed 94 days later on September 8. The lien is, then, invalid on its face.”) 17 See Intermountain Elec., 115 Wn. App. at 393 (“Even small quantities of additional supplies, if furnished at the request of the owner to complete the contract will serve to keep the 90-day lien limitation period from starting.”). 18 115 Wn. App. 384, 391-92, 62 P.3d 548 (2003).
19k1.at389. Id. at 390.
6 No. 77352-6-117
the general contractor neither requested nor required the electrician’s
construction trailer, the electrician stopped providing beneficial services on June
6 and did not have a valid lien.21 But the court declined to hold the lien frivolous,
despite it being invalid because it presented debatable issues of law and fact.22
Like the electrician in Intermountain Electric, Servpro stopped providing
beneficial services to Wood ley well before it retrieved its equipment.23 But
without more, the lien is not frivolous even accepting it was invalidly filed more
than 90 days after Servpro concluded beneficial work.
Third, Wood ley contends the lien was frivolous because the contract
between MacPherson’s and Servpro did not state the actual amount charged.
Authorized liens are only for ‘the contract price” of what the claimant provided.24
2Hd.at 393. 22k1.at394. 23 Servpro explains that its services were still necessary from September into November based on its own moisture readings and its contract with MacPherson’s. But this argument presumes a party to a Servpro contract has no power to refuse ongoing services, even if unwanted. Servpro’s employees knew someone repeatedly unplugged their equipment. And within one week of the leak, Woodley told MacPherson’s to tell Servpro to remove their equipment from her unit. Wood ley’s demand revoked the authority for MacPherson’s or the Association to authorize additional work. See CKP, Inc. v. GRS Const. Co., 63 Wn. App. 601, 608, 821 P.2d 63 (1991) (“Whether one is the agent of another for a specific purpose depends in part upon whether that person has power to act with reference to that purpose.”); see also RESTATEMENT (THIRD) OF AGENCY § 1.01 cmt. c (AM. LAW. INST. 2006) (“As defined by the common law, the concept of agency posits a consensual relationship in which one person, to one degree or another or respect or another, acts as a representative of or otherwise acts on behalf of another person with power to affect the legal rights and duties of the other person.”). Servpro provides no authority that it was entitled to insist on unwanted services 24 RCW 60.04.021.
7 No. 77352-6-118
But RCW 60.04.011(2) defines “contract price” as “the amount agreed upon by
the contracting parties, or if no amount is agreed upon, then the customary and
reasonable charge therefor.” An authorized lien does not require a specific
agreed-upon contract price before a claimant begins work.
Finally, Wood ley contends the lien is frivolous because it contains factual
inaccuracies, one inaccuracy being that Servpro’s work was “ongoing” when it
filed the lien.25 The other is that the association owned the properties listed on
the lien. These inaccuracies may be material to the ultimate validity of the lien,
but they do not automatically make it frivolous.26
Because Servpro’s lien presents debatable issues of law and fact, it is not
frivolous.
Servpro’s Lien Is Clearly Excessive
Servpro argues that its lien was not clearly excessive because it did not
file it in bad faith or with an intent to defraud. Servpro cites to Pacific Industries,
Inc. v. Sinqh for the proposition that “[a] materialman’s lien will be declared
invalid because it is excessive only if the amount is claimed with an intent to
defraud or in bad faith.”27 But this standard relies on cases that predate
RCW 60.04.081 and consequently, fail to account for the statute.
25 Resp’t’s Br. at 21. 26 See S.D. Deacon, 150 Wn. App. at 91 (stating that a lien must have been “improperly filed” “beyond legitimate dispute” for it to be held frivolous). Inaccuracies and misrepresentations on the face of the lien may be sufficient in circumstances not present here to show that the lien has been improperly filed beyond legitimate dispute. 27 120 Wn. App. 1, 10, 86 P.3d 778 (2003).
8 No. 77352-6-119
In Knibb v. Mortensen, our Supreme Court noted that liens “must be
claimed in good faith” and that “willful excess would vitiate the whole lien”
regardless of evidence of bad intent.28 The court released the lien because the
claimant “burdened a little dwelling with twice as much [debt] as he had a right to
claim by lien, and, in our opinion, he did it willfully, out of an ill humor which is
exhibited in sundry features of the record.”29
In Radley v. Raymond, the court considered whether a mechanic lost his
lien by overcharging a customer for a rebuilt engine.30 An overcharge could lead
to release of the lien if “the court finds that such mistake or error [on the face of
the lien] was made with intent to defraud or in bad faith.”31 Bad faith could be
demonstrated by a claimant “claiming a lien for items to which he knew he was
not entitled.”32 Because the mechanic filed a lien for an amount almost 40
percent more than the contract price and failed to provide a good faith
explanation for doing so, the court released the lien.33
More recently in CHG International, Inc. v. Platt Electric Supply, Inc., this
court relied on Knibb and Radley to determine whether an electrical supply
company lost its right to a materialmen’s lien “by claiming an excessive
2889 Wash. 595, 596, 154 P. 1109 (1916). 29 Id. 30 34 Wn.2d 475, 477-79, 209 P.2d 305 (1949). 31 Id. at 481. 32 Id. ki. at 482-83.
9 No. 77352-6-1110
amount.”34 In CHG, the trial court authorized foreclosure of a lien and entered a
judgment for $25,000 of the $77,000 claimed on the face of the lien.35 The
debtor appealed and argued that the reduced judgment showed the lien should
be released because the claimant overcharged for the services provided.36 This
court declined to release the lien because the evidence explained the
overcharges without showing bad faith or fraudulent intent by the claimant.37
But these cases were decided before the legislature created the
procedural mechanism in RCW 60.04.081 to release or reduce a lien. In 1991,
the legislature repealed and replaced most of the materialmen’s lien statute, and
created the mechanism in RCW 60.04.081 to manage liens prior to foreclosure.38
The prior version of the statute had no equivalent procedure.39
When interpreting a statute, we rely on the plain meaning of its terms to
give effect to the intent of the legislature.4° We determine legislative intent from
the context of the statute and statutes related to it.41 We do not engage in
~ 23 Wn. App. 425, 426, 597 P.2d 412 (1979). ~ Id. 36 Id. ~ ki. at 426-27. 38 See generally LAWS OF 1991, ch. 281, § 8. ~ Compare LAWS OF 1991, ch. 281, § 8, wfth former ch. 60.04 RCW (1989). 40 Inland Empire, 189 Wn.2d at 843 (quoting Dept of Ecology v. Campbell
& Gwin, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4(2002)); W.R.P., 85 Wn. App. at 749. 41 Inland Empire, 189 Wn.2d at 843 (quoting Campbell & Gwinn, 146 Wn.2d at 11, 12)).
10 No. 77352-6-I/il
statutory construction if its plain terms are unambiguous and will not produce an
absurd result.42 “We presume the [Ijegislature is familiar with past judicial
interpretations of its enactments.”43
When the legislature enacted RCW 60.04.081, it created a distinct
procedural mechanism to adjudicate a lien prior to foreclosure.44
RCW 60.04.081(4) provides the remedies available to a property owner
contesting a lien:
If, following a hearing on the matter, the court determines that the lien is frivolous and made without reasonable cause, or clearly excessive, the court shall issue an order releasing the lien if frivolous and made without reasonable cause, or reducing the lien if clearly excessive, and awarding costs and reasonable attorneys’ fees to the applicant to be paid by the lien claimant.[45J The statute delineates between a “frivolous” lien and a “clearly excessive” lien by
consistently separating the two with commas and the disjunctive “or.”46 In the
limited summary proceeding authorized by RCW 60.04.081, the only remedy for
a clearly excessive lien is reduction of the lien. Release is available only where a
42 In re Dep. of D.L.B., 186 Wn.2d 103, 116, 376 P.3d 1099 (2016). ~ Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 789, 719 P.2d 531 (1986) (quoting Glass v. Stahl Specialty Co., 97 Wn.2d 880, 887, 652 P.2d 948 (1982)). ~ See RCW 60.04.081 (3) (allowing adjudication of a lien prior to an action to foreclose the lien). ~ RCW 60.04.081(4) (emphasis added). 46 See RCW 60.04.081(4); see also RCW 60.08.081(1) (“Any owner of real property subject to a recorded claim of lien who believes the claim of lien . . .
to be frivolous and made without reasonable cause, or clearly excessive may apply by motion. .“) (emphasis added). . .
ii No. 77352-6-1112
lien is “frivolous and made without reasonable cause.”47 Moreover, “shall”
indicates that these remedies are mandatory, and courts do not have discretion
in deciding which remedy is appropriate.48
We presume the legislature knew that “claiming an excessive amount”
with bad faith or an intent to defraud could result in release of the lien.49 But
RCW 60.04.08 1 limits the remedy for a “clearly excessive” lien to reduction of the
lien’s face value and allows release only where a lien is frivolous.50 Thus, the
proscriptive language in RCW 60.04.081(4) eliminates the possibility of release
of a lien where it is “clearly excessive” but not frivolous.51
We also cannot read RCW 60.04.081(4) to allow release of a
non-frivolous, excessive lien even if made in bad faith or with intent to defraud
because it would read additional terms into the statute and undermine the
~ RCW 60.04.081(4). 48Erection Co. v. Dept of Labor & Indus. of State of Wash., 121 Wn.2d 513, 518, 852 P.2d 288 (1993). ~ CHG Int’l, 23 Wn. App. at 426; see Hangman Ridge, 105 Wn.2d at 789. 50 ROW 60.04.081(4). 51 We note that our Supreme Court in Williams described the proceeding created by RCW 60.04.08 1 as “a summary proceeding in which a property owner may quickly obtain the release of a lien that is frivolous and made without reasonable cause or is clearly excessive.” 172 Wn.2d at 699 (emphasis added) (quoting W.R.P., 85 Wn. App. at 749). Because ROW 60.04.081(4) distinguishes the remedies for frivolous liens from clearly excessive liens, we do not believe either the Williams or W.R.P. courts were attempting to redraft the statute through a casual description. ~ In re Marriage of Ruff and Worthley, 198 Wn. App. 419, 425, 393 P.3d 859 (2017) (“Courts cannot amend statutes by judicial construction.”).
12 No. 77352-6-1/13
statute’s mandatory language limiting each remedy to a particular problem.52 We
note that in Sinqh, this court cited pre-1991 cases to describe a “clearly
excessive” lien as one “claimed with an intent to defraud or in bad faith.”53 But
this reading would undercut the purpose of the clearly excessive provision of
RCW 60.04.081. For example, if a lien claimant accidentally filed a lien for
$100,000 on $1,000 worth of work without any bad faith or an intent to defraud,
then the property owner would not be entitled to a reduction. The language of
RCW 60.04.081 does not include such a bad faith or intent to defraud
requirement.
To the extent that p re-i 991 cases discussing release of excessive liens
may still have vitality, they are not controlling where a court considers a motion
made under RCW 60.04.081. In a summary lien proceeding, a court must
reduce rather than release a “clearly excessive” lien.
In absence of any statutory definition for “clearly excessive,”54 we must
read those words to give them their ordinary meaning.55 Because they are
52 See Ruff and Worth 1ev, 198 Wn. App. at 425 (“We cannot read into a statute that which we may believe ‘the legislature has omitted, be it an intentional or inadvertent omission.”) (internal quotation marks omitted) (quoting In re Custody of Smith, 137 Wn.2d 1, 12, 969 P.2d 21(1998), aff’d sub nom Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). ~~120 Wn. App. at 10. 545ee RCW6O.04.011. ~ Univ. of Washington v. City of Seattle, 188 Wn.2d 823, 837, 399 P.3d 519 (2017).
13 No. 77352-6-1/14
undefined by statute, we may look to standard English dictionaries.56 In standard
English, something “excessive” is “characterized by or present in excess.”57
Something is present in “excess” when there is “[m]ore than or above the usual
or specified amount.”58 “Clearly” means “without doubt or question.”59 Thus, for
a lien to be “clearly excessive,” it must be unquestionably characterized by being
far above the usual or agreed amount.
This accords with the requirement in RCW 60.04.021 that a lien is
authorized only “for the contract price” of what the claimant provided. The statute
defines “contract price” as “the amount agreed upon by the contracting parties, or
if no amount is agreed upon, then the customary and reasonable charge
therefor.”6° In providing a remedy for a clearly excessive lien, the legislature
created a mechanism by which a court could efficiently reduce a lien where the
amount claimed on the face of the lien is unquestionably far greater than the
value of the goods or services provided.
But this remedy is not intended to be used to harm lien claimants, who are
the very persons the legislature enacted chapter 60.04 RCW to protect.6’ Nor
56Quinault Indian Nation v. Imperium Terminal Servs., LLC, 187 Wn.2d 460, 477, 387 P.3d 670 (2017). ~ WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 792 (2002). 58 Id. 59kLat420. 60 RCW6O.04.011(2).
61See Williams, 172 Wn.2d at 697 (“The claimants are therefore parties ‘intended to be protected’ by the statute, RCW 60.04.900, and we will liberally construe the statute to protect them.”).
14 No. 77352-6-1/15
should the availability of this summary proceeding to reduce the value of a clearly
excessive lien be used “as a substitute for trial where there is a legitimate dispute
about the amount of work done and money paid.”62 And we must read the
statute in context. Congruent with the requirement that a party challenging a lien
in this summary proceeding must show that it is frivolous “beyond legitimate
dispute,”63 a party challenging a lien as clearly excessive must show that the face
value of the lien is unquestionably far greater than the value of the goods or
services provided.
Here, the lien purports to encumber 20 specific units and a common
storage area in building E of the condominium complex. This approach failed to
properly account for how lien statutes and condominium statutes interact.64
A condominium is comprised of two legally distinct physical parts: units
and common elements.65 The unit “is the subject of individual ownership” and “is
legally a separate parcel of realty, separately owned, taxed, and financed.”66 A
62S.D. Deacon, 150 Wn. App. at 90; see Gray v. Bourgette Const., LLC, l6OWn. App. 334, 341, 249 P.3d 644 (2011) (“[A]s we cautioned recently, ‘[t]rial courts should take care not to let the frivolous lien statute be misused to deprive contractors of their right to trial on a lien claim.”) (second alteration in original) (quoting S.D. Deacon, 150 Wn. App. at 89). 63SD Deacon, 150 Wn. App. at 91. 64 Chapter 60.04 RCW is the germane lien statute. Because Woodley’s
condominium complex was created before July 1, 1990, portions of both the Horizontal Property Regimes Act, ch. 64.32 RCW, and the Condominium Act, ch. 64.34 RCW, apply. RCW64.34.010. 65 18 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: TRANSACTIONS § 12.2, at 21-22 (2nd ed. 2004); RCW 64.32.010(1). 6618 STOEBUCK&WEAVER, supra, at 22; RCW64.32.040.
15 No. 77352-6-1/16
unit’s boundaries are “the interior surfaces of the perimeter walls, floors, ceilings,
windows and doors thereof.”67 Common elements are, generally, “all parts of a
condominium other than the units.”68 Common elements include the building’s
roof.69 Unit owners collectively own the condominium’s common elements as
tenants in common.7° Generally, an owners’ association does not own any of the
condominium’s real property.71
An owners’ association “is a statutorily required unit owners’ profit or
nonprofit corporation, which has powers to manage common elements and to
perform other functions” as required by statute or by private agreement.72 Those
private agreements include the “declaration,” the legal document creating the
condominium and defining the association’s powers.73 By statute, an association
has the power to make contracts and incur liabilities, hire managing agents, and
regulate “maintenance, repair, [and] replacement” of common elements in a
condominium.74 Accordingly, an association has a statutory right of access
related to its duties to repair and maintain:
67 RCW 64.32.010(1). 68 18 STOEBUCK & WEAVER, supra, at 22. 69 RCW 64.32.010(6)(a)-(b). 7018 STOEBUCK&WEAVER, supra, at 22; RCW64.32.050(1). 7118 ST0EBUCK & WEAVER, supra, at 23. 72 Id. ki. at 22. ~ RCW 64.34.304(1).
16 No. 77352-6-1/17
The association . shall have the irrevocable right. to have . . .
access to each [unit] from time to time during reasonable hours as may be necessary for the maintenance, repair, or replacement of any of the common [elements] therein or accessible therefrom, or for making emergency repairs therein necessary to prevent damage to the common [elements] or to another apartment or apartments.[751
Typically, an association pays its liabilities and then levies assessments
on unit owners who, in turn, pay the association.76 An association may file a lien
against the unit of an owner who fails to pay assessments.77
A contractor may file a mechanics’ or materialmen’s lien against an entire
condominium complex in the same way it would file a lien against an individual
property, such as a single-family house, by naming an owner’s association as the
indebted person and listing the whole condominium as the property against
which a lien is claimed.78 When a contractor files a lien naming an owner’s
association as the indebted person and describing the whole condominium as
the property against which a lien is claimed, then a judgment enforcing the lien
extends to all units in the condominium and each owner’s interest in the common
~ RCW 64.32.050(6). We note that in this case, Servpro’s services to Woodley were for only the interior walls and ceiling of her unit, which are not common elements. 7618 STOEBUCK&WEAVER, supra, at 23; RCW64.34.360(3), .364. ~ RCW 64.34.364. 78 RCW 64.32.070; see RCW 64.34.368(1) (‘[A] judgment for money against the association perfected under RCW 4.64.020 is a lien in favor of the judgment lienholder against all the units in the condominium and their interest in the common elements at the time the judgment was entered. No other property of a unit owner is subject to the claims of the creditors of the association.”).
17 No. 77352-6-1/18
elements.79 The collective lien is released if the association pays the total
balance due or, in the alternative, an individual unit is released if the unit owner
pays the lien holder her proportional share of the total amount owed by the
association.80 Notably, this proportional share is not based on the value of the
benefit to a unit but on the “fractional and proportionate amounts attributable to
each of the [units] affected,” which must be computed by reference to the unit
owner’s ownership percentage of the entire condominium ‘appearing on the
declaration.”81
A contractor can also file a lien against an individual unit improved by the
contractor’s services where the unit owner or the owner’s agent “expressly
consented” to the services.82
Servpro erred by blending these two distinct methods of filing liens for
work performed in a condominium. Servpro filed a lien listing individual units
where it worked, naming the individual owners of those 20 units, naming the
association as the indebted person, and providing a face value that includes the
value of work benefiting those 20 units individually as well as work benefiting the
condominium’s common elements. The face value of Servpro’s lien is
~ RCW 64.32.070; RCW 64.34.368. 8018 STOEBUcK&WEAVER, § 12.6, at42 (citing RCW64.34.368(3)); see also ROW 64.32.070(2). 81 ROW 64.32.070(2). We note the Condominium Act, ROW 64.34.368(3), expresses this same concept as the “ratio which that unit owner’s allocated common expense liability bears to the allocated common expense liabilities of all unit owners whose units are subject to the lien.” 82 ROW 64.32.070(1).
18 No. 77352-6-1/19
$183,945.09, but Servpro agrees the maximum value of the services provided to
Woodley’s unit was $6,001 gQ83 And the lien provides no information on its face
to let another party know the amount owed by each owner or by the association.
Servpro argues that no reasonable person could look at the lien and
believe it is intended to encumber Woodley’s individual unit for its face value, but
it provides no authority for this proposition. And this argument misunderstands
the legal effect of a lien on real property. A lien encumbers property to secure
payment of a debt, and encumbrances diminish the value of the property.84
Unquestionably, then, Servpro’s lien clouds the title to Woodley’s unit for an
amount far above the usual or specified value of its services benefiting Woodley.
The lien is clearly excessive for purposes of RCW 60.04.081.
Attorney Fees
Both parties request fees. RAP 18.1(a) authorizes an award of attorney
fees if authorized by law. RCW 60.04.081(4) requires that a court award attorney
fees to the movant if she shows the lien is frivolous or clearly excessive.
Because Wood ley demonstrated that Servpro’s lien is clearly excessive, we
award her attorney fees upon her compliance with RAP 18.1.
83 See Report of Proceedings (July 14, 2017) at 21 (stating the portion of the lien associated with Woodley’s unit is “like $6,000”); Appellant’s Br. at 8 (“In total, Servpro billed $6,001 .90 associated with services at Unit 208.”); Appellant’s Br. at 13 (“Respondent’s unit total was $6,001 .“); Clerk’s Papers at 195-96 (itemized invoice showing a total of $6,001.90 in services and taxes for Woodley’s unit). 84 S.D. Deacon, 150 Wn. App. at 89; Robinson v. Khan, 89 Wn. App. 418,
421, 948 P.2d 1347 (1998) (quoting Merlin v. Rodine, 32 Wn.2d 757, 760, 203 P.2d 683 (1949)).
19 No. 77352-6-1/20
CONCLUSION
The trial court erred by determining that Servpro’s lien was frivolous and
releasing it. Although Servpro’s lien may ultimately be invalid and unenforceable,
the narrow hearing authorized by RCW 60.04.081 does not allow for release of a
lien based on invalidity alone.85 Accordingly, we reverse the trial court’s ruling
releasing the lien.
The court correctly concluded that Servpro’s lien was clearly excessive,
but the court made no findings of fact about the amount by which the lien was
excessive.
Therefore, we reverse the trial court ruling in part, affirm in part, and
remand for proceedings consistent with this decision.
WE CONCUR:
_____ ____ A / __________________________ —~ /
85The parties vigorously debate the validity of Servpro’s charges for asbestos testing. But on the existing record and briefing, neither party establishes that the validity or invalidity of the asbestos charges affects our determination that the lien is not frivolous but is clearly excessive for purposes of RCW 60.04.081.