Be Ready to Lien in 2009 (but Be Careful!)

2009 is likely to be a year in which many construction liens are filed. As all of us in construction know, and as reported in the AGC SmartBrief, the beginning of 2009 and through 2010 will likely show an even greater downturn in the commercial and residential markets. These economic times will make mechanic’s liens, bonding and other proactive approaches to collection all the more important.

However, you need to be careful in filing your liens, especially in Virginia. Even with my experience, I am always amazed at how specific the requirements for filing mechanic’s liens in Virginia (and other states) can be.

For example, in a recent case out of Fairfax County, Artitech, Inc. v. Kaled Naser, et. al., CL07-5431 (Va. 2007), the Court invalidated a lien because the affidavit required to be filed with the lien to verify the amount claimed did not identify the capacity of the signatory of the affidavit. The Court reasoned that the Virginia statute requires that the lien be verified by the claimant or its agent. Therefore, the failure of the affidavit to specifically identify the affiant as an agent for the lien claimant invalidated the entire lien.

As another example, this one from the Virginia Supreme Court in Britt Construction v. Magazzine Clean, LLC, 623 S.E.2d 886 (Va. 2006) the Court invalidated a lien for which the Owner had actual notice because Britt did not append a certification of mailing to the mechanic’s lien. In short, this is yet another victory of form over substance in the Virginia mechanic’s lien jurisprudence.

The lesson here is that mechanic’s lien law in Virginia is fraught with pitfalls for the unwary and legal counsel from an experienced construction lawyer familiar with this field is required to assure that your rights are protected. Filing a lien memorandum without advice of counsel (whether me, through a service like ExpressLien coupled with advice of counsel, or using an attorney with experience in this area) is never a good idea because one misstep can cause you to lose your lien rights.

I look forward to continuing the dialog in 2009!

As always, I welcome your comments. Also, please subscribe to keep up with this and other Construction Law Musings.

PS: Here is another link about increased lien filings (Thanks to Scott Wolfe for pointing this out).

PPS: More on the specific timing requirements in the statute and how cases interpret them.

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9 Responses to Be Ready to Lien in 2009 (but Be Careful!)
  1. Scott Wolfe
    December 29, 2008 | 11:57 AM

    Thanks for the references to Express Lien, & our blog. I don't think us construction attorneys can say this enough.

    I try to emphasis to our Wolfe Law clients that liening can be so powerful, but its full of traps for the unwary. The "Be Ready to Lien (but Be Careful)" title is a great summary of the balancing act required by contractors who want to find success with construction liens.

    And as to the Artitech, Inc. case, I ran across it over the weekend. I think that may be the most picky I've ever seen a court get about the contents of a lien.

    Virginia seems to have a very strong lien, but that is tempered with some strong prerequisites.

  2. Construction Law Musings-Richmond, VA
    December 29, 2008 | 12:02 PM

    Thanks for the input. And, yes, the Virginia Courts regularly put form over substance in the lien area. The justification is that the lien is so powerful, we need to assure that it is filed correctly.

  3. Construction Law Musings-Richmond, VA
    December 29, 2008 | 3:00 PM

    Here is one more link to an article regarding increased lien filings (thanks Scott)

  4. […] is significant because, as I have discussed on numerous occasions here at Musings, Virginia mechanic’s liens are extremely picky in their enforcement. While I would […]

  5. […] Scott Wolfe at the Construction Lien Blog has posted several short items on Virginia Lien Law that are worth checking out. However, while these posts are accurate and give the basics of lien law in Virginia, please hire an attorney (whether its me or another experienced construction lawyer) to help you file a lien and enforce it in Virginia because of the pitfalls that can occur from the slightest mistake. […]

  6. […] Construction Law Musings- Richmond, VA […]

  7. How to remove a mechanics lien
    November 30, 2010 | 11:36 AM

    […] Constitution and the Texas Property Code (Texas sometimes can be as picky as Virginia: read here at Construction Law Musings). Another reason for which a lien can be invalid is due to reasons of fraud (such as a contractor […]

  8. […] 150 day rule is here to stay. In an economy where mechanic’s liens may be the best (and possibly only) protection for a construction professional on a particular construction project, keeping it in mind is a […]

  9. […] from a poor property description that leaves the least bit of ambiguity to failure to identify the capacity of the person signing the memorandum affidavit to incorrect apportionment of your lien to a subdivided property […]

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About Musings

I am a construction lawyer in Richmond, Virginia, a LEED AP, and have been nominated by my peers to Virginia's Legal Elite in Construction Law on multiple occasions. I provide advice and assistance with mechanic's liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

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