The ability to enforce mechanic’s liens rights depends on careful consideration before, during, and after construction.
Draft the lien with precision: Judges are instructed to carefully review mechanic’s liens and invalidate certain inaccurate liens. Ensure you have an accurate and precise description of the owner, contractor, property, type of work, licensure information, affidavit and notice.
File liens quickly if payment is uncertain: Virginia courts have stated that owners are not required to pay contractors twice for the same construction work. If the owner pays the general contractor and the contractor pays someone else, the owner does not then also have to pay that same amount to a subcontractor lien claimant. To avoid this situation, file liens before the owner pays the general contractor if there is a concern that the general contractor will not properly disburse those funds.
Consider multiple contracts: A lien corresponds to the contract under which the work is done. Thus, in the event of multiple purchase orders without one master contract, each purchase order may require a separate lien.
Identify the right property: When in doubt as to the scope or description of the property, get clarification rather than include all of the possible property. Liens that include any additional land not subject to the work or contract may be unenforceable.
Apportion work among multiple parcels of land: Many projects involve one contract and project that covers multiple tax parcels. If possible, ensure that you are able to apportion the work and payment owed on each parcel. Place on each invoice the separate parcel to which the work/materials are being directed. Otherwise, the lien may be invalid as a ‘blanket lien’ and unenforcable.
Consider the 150 day rule: You can only enforce liens for work provided within 150 days of the last day of your work. For lengthy jobs on which you are receiving partial payment, keep tabs on the age of the outstanding balance. If work outside that 150 day rule is included, the entire lien may be unenforceable. (Retainage is not subject to this rule.)
File the lien in compliance with the 90 day rule: You must file the lien within 90 days of the last day of the last month in which you do work, or within 90 days of project completion, whichever is earlier. Any liens filed outside this period are unenforceable. (For bond claims, the federal “Miller Act” and Virginia “Little Miller Act” require a supplier or sub-subcontractor to provide the general contractor with notice of the amount claimed and the party to whom the material was furnished, within 90 days of its last day of work, by certified, registered mail or private process personal service. Suit must be filed more than 90 days after the last day of work, but within one year of the last day of work.)
File suit within the six month rule: You must file suit on your lien within six months of its filing or the lien is unenforceable.
Note permits on residential projects: For one or two family homes, carefully note up front whether a building permit has been issued with a mechanic’s lien agent noted. This agent must be notified within 30 days of the issuance of this permit or start of construction. Without this notice, a contractor or subcontractor cannot claim a lien.
Correctly specify interest: Interest is appropriate and enforceable, but should only be claimed in strict accordance with the contract or pay application under which it corresponds.
As president of Hirschler and head of the firm's litigation section, Courtney knows how to lead people and projects to a successful outcome.
Leveraging deep experience in the construction industry, Courtney advises public and ...
Kelly’s practice focuses on construction law, commercial and product liability law, with an emphasis on dispute resolution—including mediation, arbitration, jury and bench trials in state and federal court. She routinely ...
Nate fully engages in each case and shoulders his clients’ needs. Communication, efficiency and careful judgment define his practice. In every case, he investigates competing claims to thoroughly understand their strengths ...
A professional engineer (P.E.) and an experienced lawyer, Webb began practicing at Hirschler Fleischer following four years of work as a consulting engineer. His multidisciplinary practice focuses on general business and ...
SubscribeSubscribe to Hirschler by Email
- New Defense to Joint Liability Available to Contractors
- What Employers Need to Know About Virginia’s New Overtime Wage Act
- OSHA Increases Amounts of Civil Penalties for 2021
- Have Force Majeure Defenses Based on COVID-19 Been Successful This Year?
- Kelly Bundy and Liz Burneson Publish Article on Joint Employer Status in Construction Executive
- Kelly Bundy Authors Article for ABA Construction Law Forum’s “Under Construction” Series
- Miller Act Notice More Than 90 Days Before A Subcontractor’s Final Day of Work Held Untimely
- Virginia Supreme Court Allows Sub-Sub Material Supplier To Recover Directly From General Contractor For Unpaid Material
- New Virginia Law Can Make General Contractors Liable for Subcontractors' Employee Wages
- OSHA Changes Course on COVID-19 Record-Keeping Requirements
- Occupational Safety and Health Act (OSHA)
- COVID-19, Coronavirus Outbreak
- Fair Labor Standards Act
- Lien Waivers
- Department of Labor (DOL)
- Little Miller Act
- Dispute Resolution
- Miller Act
- Government Contracts
- Workforce Development
- Mechanic's Liens
- Department of Professional and Occupational Regulation (DPOR)
- Force Majeure
- Joint Checks
- Unjust Enrichment
- Virginia Employment Commission (VEC)
- Virginia Workers' Compensation Commission
- Uniform Statewide Building Code
- Change Orders
- April 2021
- January 2021
- October 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- November 2019
- August 2019
- June 2019
- April 2019
- February 2019
- January 2019
- December 2018
- October 2018
- September 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- November 2017
- October 2017
- September 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016