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

Update on the No License, No Lien Bill

The Supreme Court of Virginia Building, adjace...
The Supreme Court of Virginia Building, adjacent to Capitol Square in Richmond, Virginia (Photo credit: Wikipedia)

Remember a month ago when I discussed a bill in the House of Delegates requiring a license number on any memorandum of mechanic’s lien in Virginia?

Since that original post, the bill moved to the Virginia Senate and eventually passed with a few, laudable, tweaks. Where the original bill made no concession for the possibility of an inaccuracy in the license number, issuance date or other minor inaccuracy in the memorandum by a licensed construction contractor, the bill as passed takes a more reasoned approach.

The bill as passed (text of HB1913 found here) specifically grants leniency for typographical and other inaccuracies in the memorandum itself with the addition to the original bill of the following language:

An inaccuracy in the memorandum as to the claimant’s license or certificate number, if any, the date such license or certificate was issued, or the date such license or certificate expires shall not bar a person from perfecting a lien if the claimant can otherwise be reasonably identified in the records of the Board for Contractors.

In my view (and I would love to hear yours), this new language strikes a good balance between the desire to protect the public and the Virginia construction community by encouraging contractors performing work in Virginia to hold a valid license and the occasionally over 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 legal and construction communities) was necessary to avoid the striking of a substantively valid lien by a licensed contractor. My hope is that the legislature has caught on that the courts will read their words literally and will take this into account should its members wish to make any further changes.

One other note for you construction attorneys out there, should the Governor sign this bill into law, be sure to amend any mechanic’s lien forms you may be using to include the changes in the form found in the three safe harbor form provisions found in Va. Code Sections 43-5, 43-8, and 43-10. HB1913 amends these forms to take into account the above described changes.

What are your thoughts on these changes? Let me know.

As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.

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