Having to file a mechanics lien stinks — there are no two ways about it. The requirements can be a lot to juggle, plus lien claims always have the potential to affect business relationships.
On the other hand, there’s nothing more important than getting paid the money you’re owed, and from time to time, a lien is necessary. When you’ve tried everything else and you still are facing a payment issue, then a mechanics lien can be a great tool to force payment of what you’re owed.
That’s why we’ve created this straightforward guide for Virginia-based contractors and suppliers — a how-to guide to help make filing a Virginia mechanics lien go as smoothly as possible.
Filing a Virginia Mechanics Lien
First of all, the state of Virginia is very strict when it comes to who has mechanics lien rights. In order to maintain your lien rights in Virginia, not only must you be licensed to do the work, but you also must only supply labor or materials to other licensed parties. That means that if a licensed contractor or subcontractor supplies labor or materials to an unlicensed party on a project, even unknowingly(!), they can lose their right to lien as well. We always recommend obtaining all necessary licenses that may be required in whichever state you primarily work in, but this is especially important in Virginia.
Timeframes for Filing
A Virginia mechanics lien must be filed within 90 days from the last day of the last month during which labor or materials were provided. It also must be filed within 90 days from the time the work is completed – so keep an eye out for that.
Here’s where it gets a little tricky as there is an additional 150-day deadline. This means that the lien can only include the amount of labor or materials supplied 150 days prior to the last day the party worked on the project. That might not seem very fair, but there’s some hope. Parties can file more than one lien, if necessary.
In order to hold the property owner or GCs personally liable, the lien claimant must also file the lien after they’ve completed work, but within 30 days of completion or termination of the project. Importantly, subcontractors must also send a ‘Post Work Notice’ 30 days from the last date they provided service or materials to the project to hold the property owner or GC personally liable. It’s a weird rule – so for more background, this article could help: Virginia’s Unusual Mechanics Lien Rule — What Contractors Must Know.
Virginia has another unusual mechanics lien rule that’s worth mentioning. If the subcontractor or another lower-tiered party on the project waits to file a lien until after the GC is paid by the property owner, the lien will fail because the owner already paid once and owners can’t be forced to twice for the same work.
So what does this mean exactly? While claimants technically have 90 days to file their liens, the most effective deadline to file for a subcontractor or lower tiered party is before the GC is paid. The one way to get around this unusual rule is to send certain notices to the property owner and/or GC that protect the subcontractor from a “defense of payment.”
What Info Goes On A Virginia Mechanics Lien?
Virginia’s lien law lays out a lien form that will be sufficient. It’s likely easiest to follow this form in order to ensure a valid lien.
The form must generally include the following information:
- Name and address of the property owner
- Name of GC (if applicable)
- Name and address of the lien claimant
- Claimant’s license or certificate number
- Date that the claimant’s license/certificate was issued and will expire
- Type of materials or services furnished
- The amount of the lien claim
- The date when the amount is or will be due
- Type of structure on which materials were provided or work was done
- A brief description and location of the property
- Claimant’s statement “declaring his intention to claim the benefit of the lien” (This can be as simple as stating “It is the intent of the claimant to claim the benefit of a lien”)
- Date the copy of the lien was mailed to the owner
- Finally, the lien must be notarized in order to be valid.
How to File
- File one copy with the county clerk in the county where the property is located (the location of the construction project)
- Serve the property owner and/or the GC with a copy of the lien by certified mail, return receipt requested
Steps After Filing a Virginia Mechanics Lien
After filing the lien, it must be enforced no later than 6 months from the date of filing or 60 days from the completion or termination of the project – whichever comes later. However, enforcing the lien doesn’t have to be the next step! During this time, many claimants are able to resolve their disputes, and mechanics lien claims rarely make it to the courtroom.
If the odds for payment don’t look great, it can also be helpful to escalate the matter with a Notice of Intent to Foreclose. This document warns recipients that if payment isn’t made soon, the lien claim will be enforced – and nobody wants to deal with a lien enforcement lawsuit. Showing the owner and/or contractor that you’re unafraid to take the claim further can go a long way to actually avoiding having to take legal action.