The Cloud Dissipates (a bit)

Virginia General Assembly

Remember HB 1265 that I discussed here at Musings back on February 6, 2012? Well, thanks to the efforts of the AGC of Virginia among other groups affected by the bill, it has been amended and a substitute proposed.

My thoughts on the latest changes? It is a good start, but adds an extra, and unnecessary, notice requirement for Virginia home builders that will only add to the cost of doing business.

First, the good.

  • The latest changes limit the additional notice requirements to one and two family residences.
  • The latest changes require that either a mechanic’s lien agent or the mailing address for the owner be listed on the building permit so that contractors don’t have to guess where to send their notices.

Now, the issues I have with the change:

  • Under the amended bill, not only do residential contractors and suppliers in Virginia need to determine who the mechanic’s lien agent might be regardless of the words on the building permit, a residential contractor now has two notices to file. The first has been there all along, i. e. the notice to the mechanic’s lien agent (MLA) within 30 days of starting work or posting of building permit. The second is a notice to either the owner or MLA 30 days prior to filing a lien.
  • What if payment is not past due or there is a payment between the time of notice and the time of lien filing? Does this cause issues? Does the notice have to be redone to match the lien amount?
  • This effectively puts residential builders on a 60 day (instead of a 90 day) lien clock.
  • This second notice is just another obstacle for builders to overcome to enforce their lien rights. It adds no additional notice to the owner or MLA who already knew that work was being performed and that a lien could be filed. Additionally, while the first of the two notices can be filed only with the MLA and only if an MLA is named in the permit (or at the local building official’s office), this second notice goes to either the owner or MLA depending on what is on the building permit. Such inconsistencies are the fodder of lawsuits.

As you can see, this bill is still very much in flux. The latest substitute was proposed only 4 days after my last blog post on the subject so this is likely not the final bill which will be voted on during the 2012 General Assembly session. I just wanted to keep you updated on its progress. As always, whenever there is an eventual change in the law, consult with an experienced Virginia construction lawyer to help you react properly to that change.

What do you think? Do you agree? Disagree? Agree, but for other reasons? If so, please comment below or contact me with your thoughts.

Image via Wikipedia.

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10 Responses to The Cloud Dissipates (a bit)
  1. Timothy R. Hughes
    Twitter:
    February 22, 2012 | 9:55 AM

    Thanks for sharing Chris.

    I have heard that the entire genesis of this horrible bill is a single legislator being pissed off that their house was liened.
    Timothy R. Hughes recently posted..A Landlord’s Duty to Mitigate. Part II.My Profile

  2. Christopher G. Hill
    Twitter:
    February 22, 2012 | 9:57 AM

    I’d heard a similar, yet more nuanced version of the story, but I’m not sure what is true. The key is that this bill is not going to do what it seems to want to do and only makes mechanic’s liens in VA more complicated.
    Christopher G. Hill recently posted..A Cloud on the Horizon for Mechanic’s Lien Claimants in Virginia?My Profile

  3. […] AGC of Virginia among other groups affected by the bill, it has been amended and a subst… “residential contractor” – Residential ContractorRelated PostsHow To Find A Roofing Contractor – Residential […]

  4. […] as this blog has previously covered in detail, the recent efforts in the General Assembly to amend the notice requirements for the filing of […]

  5. Scott Wolfe
    Twitter:
    February 26, 2012 | 12:36 PM

    I think the legislature in VA (and elsewhere) need to stop complicating the lien laws. They are some of the most complex set of laws in the nation already, and people in the industry do not understand them. This type of legislation plays to certain interest groups trying to protect homeowners, but in effect, it doesn’t help anyone 🙁
    Scott Wolfe recently posted..Issues When Liening Condominiums in LouisianaMy Profile

  6. Christopher G. Hill
    Twitter:
    February 26, 2012 | 12:55 PM

    I agree Scott. This “house of cards” can come down pretty quickly without careful consideration of any changes to the already complex and strictly construed statutory scheme.
    Christopher G. Hill recently posted..Why I “Muse” Every WeekMy Profile

  7. […] Over the past week or two I’ve been covering HB 1265, a bill that was working its way through the Virginia General Assembly legislative sausage making process. I gave you my thoughts on the original bill as written and then on the somewhat better (though far from perfect) amended bill. […]

  8. […] Over the past week or two I’ve been covering HB 1265, a bill that was working its way through the Virginia General Assembly legislative sausage making process. I gave you my thoughts on the original bill as written and then on the somewhat better (though far from perfect) amended bill. […]

  9. […] The big news both personally and in the construction legislation world was the introduction, fight and (thankfully) tabling of a new and onerous mechanic’s lien bill by the Virginia General […]

  10. […] from The Walking Dead, the bill has resurfaced in essentially the same form as that which was presented to the Virginia Senate last […]

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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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