Mechanic’s liens are a big topic here at Construction Law Musings. I’ve discussed everything from the picky nature of this powerful payment tool to the changes that are upcoming on July 1, 2019. Given the strict way that the form and timing of a Virginia mechanic’s lien is so critical, I thought a quick reminder was in order.
Two numbers that are critical to the timing and content of any mechanic’s lien are 90 and 150, both found in Va. Code 43-4. 90 days is the time from the last date of work (not invoicing), or last date of the last month in which work was done given proper circumstances.
The 90 days prescibes the time during which a contractor can properly record a valid lien. This is a hard deadline and is 90 days, not three months. Miss this deadline and no matter what the type of payment that has not been made (something discussed below), the contractor will lose its lien rights. This is the easier of the two numbers to both understand and apply. Count 90 days from last non-corrective or warranty work and that is your hard out for filing.
The 150 days discussed in the Virginia Code section above prescribes what particular work’s value can be included in the mechanic’s lien total. By this I mean essentially the total amount that can be included in the lien. This 150 days is a “look back” period from either the last date of work or the date of the lien, whichever is earlier. Any work done within that 150 days can be included in the value of the lien. Two exceptions to this 150 day inclusion period are retentions up to 10% and sums not yet due because the party that owes the money has not received payment for the work (read “pay if paid” situation). Include sums in excess of money owed for work done within the 150 days plus any retainages and money subject to pay if paid and the lien will be considered over inclusive and will be invalidated by a Virginia court (with extremely limited exceptions almost not worth mentioning).
For practical purposes, what the combination of these numbers means is that on longer projects spanning more than 5 months, a contractor in Virginia may be forced to file multiple liens in order to “catch” the value of all of its work because for every day that passes after the 150 day mark, a day’s work is no longer lienable. While this won’t invalidate that contractor’s right to a lien (the start of the 90 days moves with each day of contract work), it does affect what can be included in the lien.
As always, I recommend getting the counsel of an experienced Virginia construction attorney when preparing and enforcing a mechanic’s lien.
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Thanks for posting it was a great read!