The Picky Nature of Mechanic’s Liens (or Why you need to count back from 150 before filing)

On numerous occasions here at Musings I have discussed the almost ridiculously picky nature of mechanic’s liens in the Commonwealth of Virginia. The so called “150 day rule” found in Virginia Code Section 43-4 is no exception. The 150 day rule means that a contractor or material man can only include in a mechanic’s lien money due for labor or materials provided within 150 days of the date of filing of the lien or the last day that labor or materials are provided whichever is earlier.

A recent Virginia Supreme Court case considered this rule and found inclusion of money for materials provided outside of this 150 day window to be a fatal defect in the lien memorandum rendering the mechanic’s lien unenforceable.

In Smith Mountain Building Supply, LLC v. Windstar Properties, LLC, Record Numbers 80651 and 80652, Smith Mountain filed two separate memoranda of lien that included money owed by Windstar Properties for materials admittedly supplied to the project but provided outside of this 150 day window. The Court, reconciling two prior decisions and despite an argument by Smith Mountain that inclusion of these sums was an “inaccuracy” covered by Virginia Code Section 43-15, determined (as is uniformly the case) that the 150 day rule is to be strictly enforced and therefore both liens were invalid and unenforceable.

In short, make sure that you get paid for your early labor and materials first and account for these payments by clearing out the early invoices to keep all of your accounts receivable on a project within the 150 days. Also, on a long project during which you may have labor or materials that falls outside of this window, multiple liens are both allowed and necessary to protect your rights.

As always, experienced legal counsel is helpful in this often confusing area.

Of course, mechanic’s lien law is very state specific. For some more information on mechanic’s liens in other states, check out:

The Massachusetts Builders Blog by Andrea Goldman and The Construction & Mechanic’s Lien Blog by Scott Wolfe.

If you find this information helpful, please subscribe to this post, contact me through one of the links, or comment on this post. Thanks.

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10 Responses to The Picky Nature of Mechanic’s Liens (or Why you need to count back from 150 before filing)
  1. Andrea Goldman
    August 18, 2009 | 12:24 AM

    Chris, Thanks for the link! I find it enormously interesting that there is so much variation between states’ laws regarding mechanic’s liens. I can’t think of another area of law that is so confusing and in which one can make an irrevocable mistake. That said, we all agree that mechanic’s liens are a powerful tool in the construction arena.

  2. Christopher G. Hill
    Twitter:
    August 19, 2009 | 11:42 AM

    Any time Andrea! I am always glad to help out fellow construction attorneys.

  3. […] this reality for Virginia construction professionals, I realized that I had not discussed the picky nature of Virginia mechanic’s liens in a while.  Aside from time and value requirements, these liens, while powerful, are very […]

  4. […] interact with construction contracts.  Throughout these many posts, I have emphasized both the technical and picky nature of mechanic’s liens in Virginia and the fact that the contract is king in Virginia.  If you […]

  5. […] lesson of this case, like many a mechanic’s lien case, is that mechanic’s liens are technical and picky beasts where one small omission can derail the process.  As such the assistance of an experienced […]

  6. […] For we construction attorneys, should this bill pass into Virginia law, it means another change to the form for a lien and yet another reason why you should hire a Virginia construction lawyer to help you through the legal maze of these tricky beasts we call mechanic’s liens. […]

  7. […] I have described the mechanic’s lien process in Virginia as tricky and at times overly form driven, once this process is understood (with the help of a construction attorney in Virginia), a […]

  8. […] This year (and as summarized below), the Virginia legislators made changes, tweaks, and even a clarification or two to everything from the process for filing and recovering from the Contractor’s Recovery Fund to some of the procurement procedures under the Virginia Public Procurement Act.  Additionally, and in a bill that I was following closely and discussed here at Construction Law Musings, the good folks at the capital added a requirement that a memorandum of mechanic’s lien list a contractor’s Virginia license number and explicitly prohibiting improperly or non-licensed contractors from recording a memorandum of lien.  Whether this is a change or just a clarification has been discussed elsewhere, but one thing is certain, this new requirement for information included in such a memorandum will be strictly interpreted. […]

  9. […] construction professional’s arsenal.  Because of its power, the courts here in Virginia are extremely strict in their interpretation of the statutory requirements for such filing and enforcement.  When dealing with these liens, you must be aware of every […]

  10. […] strict reading of the mechanic’s lien statutes.  Given the Virginia Supreme Court’s strict reading of statutory language relating to mechanic’s liens, this change (pushed for by various members of the Virginia […]

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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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