District of Columbia Lien Law Summary

Prepared by:
Levy · von Beck & Associates, P.S.
600 University Street, Suite 3300
Seattle, WA 98101 (206) 626-5444
www.levy-law.com

The information contained in this document is an interpretive summary of the private and public works construction lien statutes and is subject to change without notice. Levy · von Beck & Associates, P.S. strongly recommends that the user seek legal counsel before relying on this document to confirm that the information is current and accurate. This document is provided as a courtesy and, as such, Levy · von Beck & Associates, P.S. accepts no liability in connection with reliance thereon or any loss sustained by anyone using or relying on the information contained herein. The intended use of this document is to provide a framework for understanding and dealing with the construction lien statutes.

	D.C. Code
	(As of 06/06)
QUESTIONS	PRIVATE WORKS
	[40-301.01 et seq.; 40-303.01 et seq.]
What work is covered?	Buildings and the lot. [40-301.01]

Who may have a lien? Contractor and those directly employed by contractor as sub, laborer or material suppliers. Sub-subcontractors and suppliers to subs are not entitled to lien. ALSO, note that subs’ and suppliers’ liens are limited to the contract funds owing at the time they give their final notice, unless the owner takes one of the improper actions set out below in the “special notes” section. [40- 303.01; Cushman at §52.03[B]]

What is the lien against? The building and its lot, including all the ground necessary to use and enjoyment of it. But note that sub’s and supplier's liens are actually limited to the amount owed to the general at the time the notice is given to owner, and are limited to the funds themselves, except in the situations outlined at the end of this summary, in the “special notes” section. [40-301.01]

PUBLIC WORKS

[2-201.01 et seq.; 2-305.01 et seq.]

Contracts for construction, repair, etc., of public building, exceeding $100,000 if the contracting agency is one of the executive agencies under the direct control of the mayor, or $25,000 if it is a different D.C. entity. [2-201.01, 2-305.01, 2-305.04 Cushman at §52.02]

Laborers, subs and material suppliers, per Cushman limited to those supplying general or first-tier sub. [2-201.02, 2-305.06; Cushman at §52.02[D]]

Payment bond. [2-201.01; 2-305.06]

Who must give preliminary notice?

To whom is preliminary notice given?

When is preliminary notice given?

How is preliminary notice given?

Contents of preliminary notice?

Who must give final notice?

To whom is final notice given?

When is final notice given?

All claimants when there is an amount due and owing, while there are still contract funds unpaid to the general contractor. [40- 303.02]

Owner. [40-303.02]

When there is an amount outstanding to the claimant, but still some contract funds remaining unpaid to the general contractor. A lien is limited to the amount unpaid to the contractor, but if the claimant timely gives this notice they will create a presumption that any subsequent payments to the general contractor are not made in good faith, which may, in turn, give them lien rights. [40- 303.02]

No method specified, but it would be advisable to give the notice in a way that includes a receipt. [40-303.02]

Written notice of the amounts due to the claimant. [40-303.02]

All claimants. [40-301.02; 40-303.03; 40- 303.03]

-Office of the Recorder of Deeds, to be recorded in the land records.

-Owner. [40-301.02, 40-303.03]

Recorded in the Office of the Recorder of Deeds less than 90 days after completion or termination of the project, whichever is EARLIER, and sent to the owner within five business days after it is recorded. It is advisable, though, to send the notice within 90 days of claimant's final delivery. Also, note that the sooner the lien is filed the better, because the claimant is limited to the amount owed to the general at the time of giving to the owner the notice of the lien. If nothing is due or to become due to the con- tractor, then the lien is unenforceable, even if the reason that nothing is due is because of a breach of contract by the contractor. NOTE, HOWEVER, that where the owner

No one.

Not applicable.

Anyone having direct contractual relationship with sub but not with contractor supplying bond. [2-201.02, 2-305.06]

Contractor. [2-201.02, 2-305.06] It is also recommended to give a copy to the surety. [Cushman at §52.02[E]]

Within 90 days of claimant’s last furnishing labor or materials. [2-201.02, 2-305.06]

				pays the contractor in advance of the time
				agreed to in the contract, thus leaving an
				insufficient amount to cover the lien, then
				the property will remain subject to the lien.
				But once the notice has been filed and given
				to the owner, then the owner is required to
				withhold sufficient funds to cover the claim.
				[40-301.02, 40-303.02, 40-303.03; 40-
				303.04, 40-303.06; Cushman at §52.03[C]]
How	is	final	notice	To the Recorder of Deeds: Filed.
given?				To the Owner:
				-By the contractor:	Certified mail to the
				owner. If the certified mail is returned to
				the claimant unclaimed or undelivered, the
				claimant must post a copy of the notice at
				or on the project real property in a location
				generally visible from some entry point to
				it.
				-By all other claimants:		Served on the
				owner by leaving a copy with the owner or
				his agent, if the owner or agent is a
				resident of the District.		If neither can be
				found, post the notice on the premises.
				[40-301.02, 40-303.03]

Mail by registered mail to contractor at office or residence or served in a manner in which the United States marshal is authorized to serve summons. [2-201.02, 2-305.06]

Contents of final notice? -A Notice of Intention of claimant to hold a lien on the property hereby declared to such lien

-Name and address of the contractor or the contractor’s registered agent

-Name and address of the property owner or the owner’s registered agent

-Name of the party against whose interest the lien is claimed

-The amount claimed, less any credit for payments received up to and including the date of the notice of intent

-Description of the work done, including the dates that work was commenced and completed;

-A description of the material furnished, including the dates that material was first and last delivered

-A legal description and, to the extent available, a street address of the real property

-If the claimant is organized in D.C. or doing business in D.C., then the notice must include a copy of the claimant’s current license to do business in the District issued by the Department of Consumer and Regulatory Affairs; and a certificate of good standing from the Department of Consumer and Regulatory Affairs issued within 180 days prior to the date of the filing of the notice of intent

-If the claimant is organized in another state requiring licensing by a governmental entity, then the notice must include a copy of the claimant's current license to do business issued by the government of the other jurisdiction; and a certificate evidencing the claimant's good standing in its place of business or state of incorporation issued by the other jurisdiction

-If the project is provided under a home improvement contract, a copy of the home improvement contract

-A sworn, notarized statement affirming under penalty of perjury and upon personal knowledge that: (i) the contents of the notice of intent are true and correct to the best of the claimant's information and belief; and (ii) the claimant has a right to recover the amount claimed.

-Amount claimed

-Name of party to whom labor or material supplied. [2-201.02, 2-305.06]

				-NOTE that if the notice of intent is
				executed by an authorized representative or
				counsel of the contractor, he or she shall
				attach evidence of his or her authority to
				execute the notice of intent on behalf the
				claimant and shall affirm that the notice of
				intent is true and correct to the best of the
				affiant's knowledge and belief. [40-301.02,
				40-303.12]
Time to start suit?				Within 180 days after recording notice of
				intent. Within 10 days of filing suit, the
				claimant must also file a notice of pendency
				of action. [40-303.13]
Are	attorney		fees	No specific provision.
allowed?
What	is	priority	of	-Prior to all judgments, mortgages, Deeds of
claim?				Trust, liens and encumbrances which attach
				after commencement of work upon the
				building. [40-303.07]
				-Sub and all those contracting with the
				general are prior to the general. [40-303.10]
				-Proceeds of sale of property are divided
				among	claimants	(excluding	general
				contractor) pro rata, with those who gave
				notice to the owner before the owner paid
				the contractor having priority, at least as to
				the amount of funds paid to the contractor
				after notice was given. [40-303.11;
				Cushman at §52.03[F]]
Special Notes				Note that sub may demand from owner or
				agent a statement of the terms of the general
				contract, and the amount due thereunder. If
				the owner fails or refuses to give that
				information, or willfully gives false
				information, then claimant has a claim
				directly against the real property, and not
				limited to the amount due to the contractor
				(though it apparently will be limited to the
				amount of the general contract).			[40-
				303.05]
				No one contracting with the general
				contractor is entitled to a personal judgment
				against the owner, unless the owner gives
				the claimant a special promise, in writing,
				for consideration, to be personally
				responsible for the debt. [40-303.19]
				Lien claim against real property will not be

More than 90 days after last supplying labor and materials, but less than one year after final delivery. [2-201.02, 2-305.06]

No. [2-201.02]

No specific provision.

None.

defeated or reduced where the owner pays the general early in an attempt to avoid the lien. [40-303.06]