Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

Forgot to File a Mechanic’s Lien in Time? All is not Lost.

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I spend a lot of time on the subject of mechanic’s liens here at Construction Law Musings. I do this because these creatures of Virginia state statute have very specific requirements and the slightest mistake in timing or content can lead to loss of your rights to enforce a mechanic’s lien in Virginia. Hopefully, my loyal readers have read these posts carefully and will not be in a situation where they have lost their mechanic’s lien rights. However, there may be times when the timing just does not work out, or for some other reason your mechanic’s lien rights may have expired.

While the loss of lien rights seems a dire consequence, particularly in a down construction economy, Scott Wolfe (@scottwolfejr) posted a good reminder that all is not lost. Just because you, as a contractor or subcontractor, no longer have enforceable lien rights does not mean that you are completely out of luck as far as legal rights are concerned. Your mechanic’s lien rights would not exist but for your contract and your construction contract is enforceable.

While losing one arrow in your quiver of enforcement possibilities may seem disastrous, if you are in Virginia where the contract is king you will still have rights and Virginia courts will enforce them. So long as you have a carefully drafted and negotiated written contract, the Virginia courts will support your claim against the party with whom you have a direct contract (whether an Owner, General Contractor or Subcontractor). However, unlike in the case of a lien, your rights are only enforceable to the extent they exist pursuant to your contract. The help of an experienced Virginia construction lawyer can and will help with assuring your rights are protected in such a contract, so please consult an attorney prior to signing a construction contract or drafting one.

In sum, don’t despair merely because your lien rights may not be as strong as you had hoped. With the help of a well drafted contract and a good construction lawyer, you can and hopefully will prevail in collecting your hard earned money on that problematic construction project.

Please let me know your thoughts and feel free to e-mail me or comment with any questions. Also, please subscribe to keep up with this and other Construction Law Musings.

Forgot to File a Mechanic's Lien in Time? All is not Lost.
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7 Responses to Forgot to File a Mechanic’s Lien in Time? All is not Lost.

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    Forgot to File a Mechanic’s Lien in Time? All is not Lost.:

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    I spend a lot of time on the … [link to post]

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  2. I have had way too many clients calling me on day 90-120 this year! Unfortunately, their contract claims were not worth much as those parties were judgment proof, but good points nonetheless Chris!

  3. Great point Tim. It is always best to talk to a lawyer early and keep the deadlines in mind, particularly where the one with whom you have a contract may be out of money.

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    @constructionlaw Thanks for the reference on Musings: Forgot to File a Mechanic’s Lien in Time? All is not Lost. [link to post]

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  5. Good point Tim – it’s always best to get the lien filed. It adds parties, and reduces the chances of them all being judgment proof. But, if the lien isn’t filed, there’s at least (sometimes) something.

    Chris, thanks for the mention of our recent post at the Construction Law Monitor. When I first read the title, I thought we had both accidentally posted about the same thing this morning!

  6. How do these guys become “judgment proof” I am in a bad situation where someone owes me way too much money- on multiple properties that are bank owned– and need advice- One I know for sure he has been paid- but did not pay me-others may have closed-

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