As those who read Construction Law Musings on a regular basis know, mechanic’s liens are a big part of my construction law practice. These tricky and strictly enforced statutory collection tools are very powerful when correctly recorded and utterly useless if they aren’t recorded in a timely fashion and with the correct information contained within them. Couple that fact with recent changes to the mechanic’s lien form in 2019, and I feel the need to give a quick refresher.
If you’ve kept up with Musings, you know about the two big numbers for Virginia mechanic’s lien timing, 90 and 150. These should be kept in mind for every general contractor, subcontractor, or supplier on any construction project in Virginia. Virginia Code Section 43-4 sets out the reasons to keep these numbers in mind. The code section sets out why you need to know these numbers.
The 90 refers to the deadline for recording a lien. This number affects the right to a lien in Virginia. In order to preserve lien rights, a construction contractor must record the lien within ninety days of the last day of the last month in which the last work was performed or no later than ninety days from the date of completion of the project or other termination of work. The short version is that most general contractors on commercial projects have 90 days from the last work in which to record their lien and most subcontractors have 90 days from the last day of the last month of work. However, the best practice is to simply calculate the 90 days from the last work performed or material supplied to avoid issues and arguments between attorneys regarding timing.
The 150 days relates to how much of the work value can be captured in the lien. Only work performed within 150 days of the last work performed or the date of lien recording, whichever occurs first, can be captured in the lien. If more than this value is captured, then the lien can be declared invalid. This limitation does not affect the right to a lien in the way that the 90-day lien filing deadline does. This 150-day “look back” simply causes any money for unpaid work older than 150 days to no longer be available for lien. In short, keep track of the dates of unpaid work and be sure to apply payments to your oldest payment applications or invoices first if you are running up against 150-day-old payments and are still working on the project, be sure to record a lien even if you are not done with work.
There are many other requirements for the content, parties, notices, etc. relating to the recording and enforceability of liens in Virginia. As always, I recommend that you consult with a Virginia construction attorney that keeps up with the various nuances of Virginia mechanic’s lien law when seeking to enforce your Virginia mechanic’s lien rights.
As always, I welcome your comments. Also, please subscribe to keep up with this and other Construction Law Musings.
