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

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

  1. 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. […] 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. […]

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