Originally posted 2013-01-28 09:00:45.
I’ve discussed the need for licensing here at Musings. I’ve also discussed a recent attempt to mess with the residential notice requirements of the Virginia mechanic’s lien statute. A recent bill that made it out of House subcommittee, HB 1913, takes these two concepts and mixes the need for a contractors license with the mechanic’s lien statute in a manner that could cause some consternation in the Virginia construction world, particularly for those out of state contractors and subcontractors that may not have a Virginia contractor’s license.
Along with a change to the Va. Code 43-4 perfection requirements requiring a license number on the memorandum, the proposed bill adds the following language to Va. Code 43-3:
D. A person who performs labor or furnishes materials without a valid license or certificate issued by the Board of Contractors pursuant to Chapter 11 (54.1-1100 et seq.) of Title 54.1, or without the proper class of license for the value of the work to be performed, when such a license or certificate is required by law for the labor performed or materials furnished shall not be entitled to a lien pursuant to this section.
In short, if a license is required for a contractor to perform the work for which it claims a lien, and that contractor does not have a license, that contractor cannot record a valid lien memorandum.
While it has always been the case that a construction contractor that performed certain installation and construction services in Virginia has needed a valid license (subject to potential misdemeanor charges, though this is rarely enforced in my experience), the lien statute did not require a license for a contractor to have the right to a lien. The reason for this amendment, in my opinion (and that of good friend Jim Fullerton) is to create even more incentive toward obtaining a contractor license. If this is the goal, I find it to be laudable.
For we construction attorneys, should this bill pass into Virginia law, it means another change to the form for a lien and yet another reason why you should hire a Virginia construction lawyer to help you through the legal maze of these tricky beasts we call mechanic’s liens.
What do you think of this potential change?
UPDATE: The Virginia House has passed this bill on to the Virginia Senate with the addition of some savings language relating to mistakes in the provision of the license number. You can read the engrossed bill here (HB1913E)
As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.
