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

Virginia Mechanic’s Liens- Defense Options

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Here at Construction Law Musings, I have discussed the filing of mechanic’s liens in Virginia and various cases discussing the pitfalls to be found in the filing of these powerful collection tools. However, I have rarely discussed the affirmative steps that an owner can take in defending against the filing of a mechanic’s lien by a contractor, subcontractor or supplier who provided materials and labor to its project.

Aside from the obvious defenses involving the 90 day filing term, the 150 day “look back” period, and the 6 month statute of limitations for filing suit to enforce a lien, the Virginia mechanic’s lien statute contains numerous provisions that could help an owner faced with a lien. Among them are the following:

1. If the project is for residential construction, check to make sure that the contractor or subcontractor has properly notified any mechanic’s lien agent found on the building permit. (Section 43-4.01)

2. As a defense to the priority of a mechanic’s lien filed by a contractor that refuses or is unable to complete construction, Section 43-16 places any payment by the owner made to complete the structure takes priority over the lien.

3. In order to bring such defenses to light in the event that such action becomes necessary, Section 43-17.1 provides a procedure for affirmatively challenging the validity of a mechanic’s lien for any of the previously mentioned reasons.

These are only a few of the tools that an owner or upstream contractor can use when faced with a mechanic’s lien in Virginia. As an owner of a construction project in Virginia, please make sure you discuss your options with an experienced Virginia construction lawyer to assure that you use the proper tool for the job.

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