Another case in point occurred recently in the Hanover, VA Circuit Court. In Dallan Construction Co. v. Super Structures General Contractors Inc. (Harris, J.) No. CL08-473, Jan. 30, 2009, the Court considered the question of what can be included in a mechanics lien.
Super Structures filed a mechanic’s lien for the value of work performed and materials that it ordered in preparation for doing work for Dallan Construction. Dallan canceled the project before Super Structures began work or delivered any materials to the site.
The Court determined that Super Structures’ lien was invalid because Super Structures had not provided labor or materials to the site. In short, unless you have labor or materials incorporated into or delivered to a job site you cannot properly file a mechanic’s lien in Virginia.
While this case is a Circuit Court (trial court) case, I think that it is fundamentally correct. A mechanic’s lien is a remedy that is meant to allow a construction professional to recover for the labor provided to improve a piece of property. Unless your materials and labor actively improve the real estate at the project site (for example, providing silt fencing allowing the project to commence), you should not be able to lien that project.
A lien is not a substitute for a breach of contract suit. A contract generally contains remedies that are unavailable by pursuing a mechanic’s lien and vice versa. Many times the two actions are simultaneous (and, for reasons that I will leave for a later date, many times must be enforced simultaneously if you wish to pursue both). Because a lien remedy and a contract remedy are separate, you can pursue your contract remedy even if you cannot pursue a lien.
My suggestions? Talk to an experienced construction attorney early in the construction process so that you can evaluate your options. Also, if you do in fact have lien rights, file earlier rather than later in today’s economic climate.
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