ENFORCEMENT BY SUBCONTRACTOR

LIENS ‑- MATERIALMEN ‑- CONTRACTS ‑- ENFORCEMENT BY SUBCONTRACTOR

Where a subcontractor's claim to a materialmen's lien is dependent upon his ability to show that the general contractor who employed him was acting as the agent for the owner of the property against which the lien is claimed, the subcontractor must be able to establish that the general contractor was registered under chapter 18.27 RCW, if applicable.

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                                                                  March 18, 1974

Honorable James P. Kuehnle
State Representative, 4th District
S. 1122 Skyline Pl.
Spokane, Washington 99206                                                                                                               Cite as:  AGLO 1974 No. 34

Dear Sir:

            By recent letter you have requested our opinion on the following question:

            "'Does a duly licensed and bonded materialman or subcontractor who furnishes materials or performs labor at the request of a non-registered, non-licensed, or non-bonded general contractor forego any right of lien or right to commence action against the property owner or the property improved?'"

            We answer this question in the manner set forth in our analysis.

                                                                     ANALYSIS

            Chapter 18.27 RCW, codifying the provisions of chapter 77, Laws of 1963, as amended, requires all "contractors," as is defined in RCW 18.27.010, to register as such with the state department of motor vehicles.  The primary consequence of a failure to register is set forth in RCW 18.27.080, as follows:

            "No person engaged in the business or acting in the capacity of a contractor may bring or maintain any action in any court of this state for the collection of compensation for the performance of any work or for breach of any contract for which registration is required under this chapter without alleging and proving that he was a duly registered contractor and held a current and valid certificate of registration at the time he contracted for the performance of such work or entered into such contract."

             [[Orig. Op. Page 2]]

            In addition, however, another consequence of a failure on the part of a contractor to register is set forth in RCW 60.04.010, a statute relating to mechanics' and materialmen's liens.  This statute provides, in material part, as follows:

            "Every person performing labor upon, furnishing material, or renting, leasing or otherwise supplying equipment, to be used in the construction, alteration or repair of any mining claim, building, wharf, bridge, ditch, dyke, flume, tunnel, well, fence, machinery, railroad, street railway, wagon road, aqueduct to create hydraulic power or any other structure or who performs labor in any mine or mining claim or stone quarry, has a lien upon the same for the labor performed, material furnished, or equipment supplied by each, respectively, whether performed, furnished, or supplied at the instance of the owner of the property subject to the lien or his agent; and every registered or licensed contractor, registered or licensed subcontractor, architect, or person having charge, of the construction, alteration or repair of any property subject to the lien as aforesaid, shall be held to be the agent of the owner for the purposes of the establishment of the lien created by this chapter: . . .  Contractors or subcontractors required to be registered under chapter 18.27 RCW or licensed under chapter 19.28 RCW shall be deemed the agents of the owner for the purposes of establishing the lien created by this chapter only if so registered or licensed. . . ."  (Emphasis supplied.)

            What the above underscored language means, as we read it, is this:  Where a subcontractor's claim to a lien is dependent upon his ability to show that the general contractor who requested the labor or material from him was acting as the agent for the owner of the property against which the lien is claimed, the subcontractor must be able to establish that the general contractor was registered under chapter 18.27 RCW, if applicable, in order to render his lien enforceable.

             [[Orig. Op. Page 3]]

            As far as the subcontractor's ability to commence an inpersonam action against the property owner himself is concerned, on the other hand, the fact of registration or nonregistration by the general contractor would be immaterial.  This issue, instead, would be determinable on the basis of ordinary contract principles governing the ability of a subcontractor in any case to maintain an action without being able to establish contractual privity with the party he is suing.

            It is hoped that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General