In Washington, persons furnishing labor, professional services, material, or equipment for improvements of real property are generally entitled to a lien on that property, but only if their labor is furnished at the direction of the owner or the owner’s “construction agent.”[1] Whether a lien attaches, therefore, can turn on whether the person directing work is the owner’s construction agent. Washington’s mechanic’s lien statute defines “construction agent” as “any registered or licensed contractor, registered or licensed subcontractor, architect, engineer, or other person having charge of any improvement to real property, who shall be deemed the agent of the owner for the limited purpose of establishing the lien created by this chapter.”[2]
Recently, Washington courts were required to grapple with the phrasing of the statute to determine whether or not a contractor, subcontractor, architect, or engineer were all required to “have charge” of the real property, or whether those entities automatically qualified as agents and just “other persons” were required to “have charge.” Ultimately, the Washington Court of Appeals held that an owner’s construction agent includes any registered or licensed contractor, registered or licensed subcontractor, architect, and engineer, regardless of whether those persons have charge of any improvement to real property.[3] In Guillen, Milestone at Wynnstone, LLC (“Milestone”) owned property in Puyallup on which it constructed apartment buildings. Milestone contracted with ABSI Builders, Inc. (“ABSI”) to frame the buildings. ABSI hired laborers to perform the framing work between April 11, 2014 and April 26, 2014, but failed to pay the laborers $9,914 in wages for their work. The laborers recorded a construction lien against Milestone’s property and filed a lawsuit to foreclose the lien.
Milestone moved to dismiss the lien, arguing that ABSI was not its construction agent under Washington law. Milestone argued that the definition of “construction agent” should be interpreted as if the phrase “having charge of any improvement to real property” applied to each category of potential construction agents. In other words, the owner’s registered or licensed contractor, registered or licensed subcontractor, architect, or engineer is not the owner’s construction agent unless they also have charge of any improvement to real property. The laborers argued, on the other hand, that the phrase only applied to the last category, “other person,” such that only a person that did not qualify under the first four categories needed to have charge of any improvement to real property in order to be considered the owner’s construction agent. The trial court agreed with Milestone and dismissed the lien, finding that ABSI was not a construction agent and, thus, the laborers had no lien rights.
The Washington Court of Appeals disagreed. Relying on a technical linguistic quirk known as the “last antecedent rule” – which states that a qualifying phrase following a list of terms modifies only the last antecedent term, unless the context suggests a contrary intent – the Court stated that “the last antecedent rule indicates that the phrase [“having charge of any improvement to real property”] only modifies the last antecedent – ‘other person.’” The Court also observed that this interpretation is reasonable because all of the other “specifically listed categories of potential construction agent’s area all by their nature parties that are involved with some aspect of property improvement.” The term “other person,” however, “is a broader descriptor that requires some kind of restriction in order to avoid rendering the reset of the definition superfluous.” Thus, only “other persons” are required to “have charge” over the property, whereas contractors, architects, and engineers do not.
Comment: Although this case involved a lien filed by laborers, anyone furnishing labor, professional services, material, or equipment should ensure that they contract with either the owner of the property or its construction agent. In Washington, the owner of real property is generally publicly available online through the county’s website. Laborers, materialmen, and subcontractors who do not contract directly with the owner should obtain a copy of the prime contract to ensure that the person with which they enter into an agreement is either (1) the owner’s registered or licensed contractor, registered or licensed subcontractor, architect, engineer; or (2) any other person having charge of any improvement to real property.
[3] Guillen v. Pearson, 195 Wn. App. 464, 381 P.3d 149 (2016)