Waiver of Lien Rights Requires Clear, Certain and Unequivocal Evidence

Boise Cascade Corp. v. Distinctive Homes, Inc., 67 Wash. 2d 289, 407 P.2d 452 (1965)

This case involves actions to foreclose on materialmen’s liens by Boise for materials supplied to Distinctive, a building company owned by the landowners, for the construction of two homes.  Distinctive claimed that Boise agreed to waive its lien rights when it accepted two promissory notes.  Boise, however, claimed that the two notes were merely taken as additional security when it agreed to withhold filing the liens if certain timely payments were made.

Superior Court, Benton County, entered judgment canceling the claimed lien, and Boise appealed.  The Supreme Court held that the owner of the land and the building corporation failed to meet the statutory standard of proof that his personal notes given to Boise were given as consideration for waiver of materialmen’s lien.  The court also ordered the liens foreclosed, noting that public policy expressed in state statute RCW 60.04.140 indicates that a claim that a lien has been waived by the taking of a promissory note must rest on something more tangible than the assertion that such lien was waived by the acceptance of a note or notes.