Virginia is for Lovers of Mechanic’s Liens!
Virginia’s Mechanic’s Lien Form Has Changed
Virginia is for lovers… lovers of mechanic’s liens? Maybe that’s not the slogan the state of Virginia had in mind. Although I may be one of the few that loves mechanic’s liens, today I would like to share the love & discuss the changes to Virginia’s mechanic’s lien form which went into effect July 1, 2019. The changes include the addition of the property owner’s address, the date from which interest is claimed, and identifying any amount of the claim that is not due at the time of the lien.
Securing Mechanic’s Lien Rights in Virginia
If you are furnishing to a private commercial project in Virginia, you are not required to serve a preliminary notice to secure your mechanic’s lien rights. However, we always recommend serving a non-statutory notice to ensure other parties are aware you are furnishing to the project.
Should you need to file a mechanic’s lien, serve the lien upon the owner and prime contractor within 90 days from the last day of the last month in which materials or services were furnished, but within 90 days from the project completion or work termination. The lien may only include, except for 10% retainage, materials or services furnished within 150 days prior to the last furnishing date stated in the lien. Accordingly, multiple liens may be required.
Two points of interest for lien filers in Virginia:
- Virginia is an unpaid balance lien state, so if you need to file a lien you should file it sooner rather than later.
- Virginia statute dictates that a subcontractor, lower-tier subcontractor, or material supplier may not waive or diminish their lien rights, right to assert bond payment claims, or the right to assert claims for additional costs in advance of furnishing any labor, services, or materials.
In the unlikely event that you need to proceed with suit to enforce your lien, you should file suit within 6 months from filing the lien or within 60 days from the project completion or work termination, whichever is later.
What’s in the Virginia Mechanic’s Lien
According to § 43-4. Perfection of lien by general contractor; recordation and notice the lien shall include the name and address of the property owner, the name and address of the lien claimant, the claimant’s contractor license number, a description of the materials or services provided, the claim amount, any amounts of interest due, and in addition to a statement declaring your intention to claim a lien, a description of the location of the real property.
New to the form is a section regarding monies that are not yet due: “Amount claimed: $__________. If any part of the amount claimed is not due as of the date of this mechanic’s lien, identify the date or event upon which it will be due and the sum(s) to which the due date(s) or event(s) apply: _________.”
How important is the new section? According to Virginia construction lawyer, Christopher G. Hill, this change is important and leaving it blank could cost you your lien rights.
“… addition of a specific section of the form spelling out which portion if any are claimed but not due (for instance retention or money subject to pay if paid clauses) as of the date of the recording of the memorandum of lien. Failing to spell this out on your memorandum of lien could potentially cost you a valid lien given the picky nature of these powerful but finicky beasts.”
Yikes! If you have questions or concerns about your lien rights in Virginia, it’s always best to seek a legal opinion.