Mechanic’s Liens – Page 4 – Construction Law Musings- Richmond, VA

Virginia Mechanic’s Liens- Defense Options

Originally posted 2015-08-24 09:00:15.

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Here at Construction Law Musings, I have discussed the filing of mechanic’s liens in Virginia and various cases discussing the pitfalls to be found in the filing of these powerful collection tools. However, I have rarely discussed the affirmative steps that an owner can take in defending against the filing of a mechanic’s lien by a contractor, subcontractor or supplier who provided materials and labor to its project.

Aside from the obvious defenses involving the 90 day filing term, the 150 day “look back” period, and the 6 month statute of limitations for filing suit to enforce a lien, the Virginia mechanic’s lien statute contains numerous provisions that could help an owner faced with a lien. Among them are the following:

1. If the project is for residential construction, check to make sure that the contractor or subcontractor has properly notified any mechanic’s lien agent found on the building permit. (Section 43-4.01)

2. As a defense to the priority of a mechanic’s lien filed by a contractor that refuses or is unable to complete construction, Section 43-16 places any payment by the owner made to complete the structure takes priority over the lien.

3. In order to bring such defenses to light in the event that such action becomes necessary, Section 43-17.1 provides a procedure for affirmatively challenging the validity of a mechanic’s lien for any of the previously mentioned reasons.

These are only a few of the tools that an owner or upstream contractor can use when faced with a mechanic’s lien in Virginia. As an owner of a construction project in Virginia, please make sure you discuss your options with an experienced Virginia construction lawyer to assure that you use the proper tool for the job.

As always, I welcome and encourage your comments below, please share your thoughts. Also, please subscribe to keep up with the latest Construction Law Musings.

Construction News Roundup

Originally posted 2011-03-28 09:01:00.

Much happened in the last week or so in Virginia construction, both legally and otherwise. I thought a quick roundup was in order.

On the green front we has a great article in ENR relating to the liability risk of green building and the great interest in the AGCVA Green Building Breakfast.

Also, the Virginia courts decided several interesting cases:

The first is Travelers Property Cas. Co. of America a/s/o Covenant Woods v. Premier Project Mgmt. Group LLC v. Haskell Co. a case that reminds everyone that waivers of third party rights under the contract will be enforced in Virginia.

In Suburban Grading & Utilities, Inc. v. Transportation Dist. Commissioner, the Court sends a reminder that your bids must meet the bid requirement (in this case percentage of Disadvantaged Business Enterprise participation) or your bid can be thrown out.

And, in one of my favorite areas of law, mechanic’s liens, the Court in Peed Plumbing Inc. v. Freedland clarified the mechanic’s lien rules on who has to be served with and enforcement action and when.

Musings highly recommends these links and cases for some quick information on how courts and others will look at certain contractor claims and defenses.

As always, please join the conversation with a comment below and/or subscribe to keep up with the latest Musings and Guest Post Fridays.

Forgot to File a Mechanic’s Lien in Time? All is not Lost.

Originally posted 2011-04-25 09:00:37.

I spend a lot of time on the subject of mechanic’s liens here at Construction Law Musings. I do this because these creatures of Virginia state statute have very specific requirements and the slightest mistake in timing or content can lead to loss of your rights to enforce a mechanic’s lien in Virginia. Hopefully, my loyal readers have read these posts carefully and will not be in a situation where they have lost their mechanic’s lien rights. However, there may be times when the timing just does not work out, or for some other reason your mechanic’s lien rights may have expired.

While the loss of lien rights seems a dire consequence, particularly in a down construction economy, Scott Wolfe (@scottwolfejr) posted a good reminder that all is not lost. Just because you, as a contractor or subcontractor, no longer have enforceable lien rights does not mean that you are completely out of luck as far as legal rights are concerned. Your mechanic’s lien rights would not exist but for your contract and your construction contract is enforceable.

While losing one arrow in your quiver of enforcement possibilities may seem disastrous, if you are in Virginia where the contract is king you will still have rights and Virginia courts will enforce them. So long as you have a carefully drafted and negotiated written contract, the Virginia courts will support your claim against the party with whom you have a direct contract (whether an Owner, General Contractor or Subcontractor). However, unlike in the case of a lien, your rights are only enforceable to the extent they exist pursuant to your contract. The help of an experienced Virginia construction lawyer can and will help with assuring your rights are protected in such a contract, so please consult an attorney prior to signing a construction contract or drafting one.

In sum, don’t despair merely because your lien rights may not be as strong as you had hoped. With the help of a well drafted contract and a good construction lawyer, you can and hopefully will prevail in collecting your hard earned money on that problematic construction project.

Please let me know your thoughts and feel free to e-mail me or comment with any questions. Also, please subscribe to keep up with this and other Construction Law Musings.

Fun and Learning at the 39th Annual Construction Law and Public Contracts Seminar

Originally posted 2018-11-12 16:00:54.

On November 2nd and 3rd, construction attorneys from Virginia and surrounding jurisdictions gathered in Charlottesville for the 39th Annual Construction and Public Contracts seminar co-hosted by the Virginia State Bar’s Construction Law and Public Contracts Section and Virginia CLE. This was also the first year in a while where I was not a member of the board of governors for the Construction section. Continue reading Fun and Learning at the 39th Annual Construction Law and Public Contracts Seminar

Navigating Complex Preliminary Notice Requirements

Originally posted 2016-02-26 09:00:17.

For this week’s Guest Post Friday here at Musings, we welcome back a good friend, Scott Wolfe. Scott is the founder of Levelset, a cloud-based platform that gives construction industry participants control over their financial risk and payment processes. The Levelset platform manages the mechanics lien compliance process for all parties in the contracting chain, automating and optimizing the exchange of preliminary notices, monitoring lien rights and exposure, and exchanging lien waivers. Levelset empowers over 10,000 companies to optimize their credit and financial risk management, and works to promote a fair and transparent construction payment process, improve B2B relationships, facilitate faster payments, and reduce legal and financial risk.

Sending preliminary notice is the most important step in mechanics lien compliance. A majority of states require preliminary notice (sometimes called a pre-lien notice or notice to owner) from contractors, material suppliers, and other construction parties. Even if preliminary notice is not required, however, it is best practice to send this document on all projects for a variety of reasons. Continue reading Navigating Complex Preliminary Notice Requirements