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Construction liens protect people who improve real property from the risk of nonpayment. The lien is a kind of security interest in the property improved. If other remedies fail, a person with lien rights may require that the property be sold to pay his or her claim. Architects and engineers have lien rights under Washington and Oregon law.

Washington

The Washington lien statute provides that persons furnishing “professional services” have lien rights. RCW 60.04.021. Professional services include the work of architects and engineers. RCW 60.04.011(13).

Professional services need not be performed at the project site for a lien to arise, and there is no requirement that the project actually be built. So an architect or engineer may have lien rights even if the project doesn’t get off the drawing board.

The value of an architect’s or engineer’s lien depends in part on the relative priority of other interests in the same property. When comparing construction liens, architects and engineers share low priority with prime contractors; liens for labor, materials and equipment and for work by subcontractors have priority. RCW 60.04.181(1).

When measuring construction liens against non-lien interests, however, priority is determined by when the interest “attached” to the property. Construction liens generally attach when the claimant’s work begins, while other kinds of property interests (e.g., deeds of trust) usually attach upon recording with the county auditor. Thus, if Sandra, an architect, begins work on April 5 and a deed of trust is recorded on April 10, her lien has priority over the deed of trust.

Because architectural or engineering liens can arise before any work is visible at the property, other persons acquiring interests in the same property are at risk. Washington law provides that professionals can record notices of their services. If no notice is recorded and an inspection of the project site reveals no traces of the professional’s work, the professional’s lien may be subordinated to later mortgagees and purchasers who lack notice of the professional’s work. RCW 60.04.031(5). It is prudent for architects and engineers in Washington to file the statutory notice in order to preserve their lien rights.

Oregon

The Oregon lien statute also provides that architects and engineers have lien rights. ORS 87.010(5). There is no requirement that professional services be rendered at the project site. It is an open question whether the planned project must actually be built (see Steven J. Kuhn’s article “” in the Willamette Law Review).

Oregon law regarding the priority of a lien for professional services is somewhat complex, in part because the lien’s effect on the improvement and the underlying land are analyzed separately. In general, a professional’s lien on an improvement (at least with respect to original construction) has priority over all mortgages and other encumbrances on the land, even including those that predated the commencement of the professional services. ORS 87.025(2). The professional may also have lien rights against the underlying land, but those rights may be subordinate to other interests.

The key notion here is that construction liens are deemed to attach to the land at the “commencement of the improvement,” which is defined as the time that significant work has begun at the site. ORS 87.025(7), 87.005(1). This provision has not been interpreted by the Oregon courts, but it would appear to limit the utility of a construction lien for an architect or engineer by giving priority to other interests that attach before construction commences (but after design services have commenced).

In Oregon, the relative priority of construction liens is simple: all such liens have the same priority. Thus, if the property is sold and the proceeds are insufficient to pay all liens in full, all claimants are paid pro rata. ORS 87.060(6).

In both Washington and Oregon, once construction lien rights have arisen, the law requires further acts (such as sending notices to the project owner or recording formal notices within specific time frames) to keep the lien in existence. The subject is somewhat complex and the advice of a lawyer is recommended. The foregoing comments are offered because some architects and engineers do not know that they have lien rights at all.

Karl Oles is an attorney in the construction and design practice group of Stoel Rives LLP. Contact him at 206-386-7535 or at [email protected].