Maybe Close Enough Still Counts with Mechanic’s Liens?

Remember that case where “substantial compliance” was enough for the proper enforcement of your mechanic’s lien rights?  Remember how I said maybe it was an outlier?  Remember how the Virginia General Assembly modified the statute and the statutory forms to account for the ambiguity discussed in the Desai case? Remember how Virginia mechanic’s liens seem to place form over function in most if not all cases?

Well, at least one court in Virginia seems to have taken the Desai case and read it to only require substantial compliance to the statutory requirements for a plaintiff to have an enforceable memorandum of lien.  In Firekleen LLC v. Robert Florimo, the Hanover County, Virginia Circuit Court looked at a memorandum of lien that prior to Desai would have been thrown out of court as unenforceable for its various flaws.  The flaws in the memorandum pointed out by the defendants in the case ranged from failure to name both tenants by the entirety owners of the real estate to failure to identify the signatory on the lien as the agent for the claimant.  In fact, in a pre-Desai case, this same Court had previously found a memorandum of lien invalid for, among other reasons, failure to properly identify the signatory of the lien as the agent of the claimant.

However, in Firekleen, and while acknowledging its prior opinion seemingly in contradiction to its current one, the Court overruled the demurrer filed by the defendants and that pointed out the various flaws in the pleading and memorandum.  In doing so, the Court stated that the failure to name all owners or properly name the signatory on the lien as agent for Firekleen was not fatal because the defendants could identify the property and because the lien substantially complied wiht the purpose of the statute.  The Court further allowed the Plaintiff to amend its complaint to properly plead that the lien included no amounts in violation of the 150-day rule.

While this is a single opinion from a single Virginia Circuit Court it does show the affect of the Desai case on reasoning by lower Virginia courts.  For at least one court the highly technical and formalistic regime for mechanic’s lien filings has loosened somewhat.  Does this mean you can rest easy?  I don’t think so.  I still believe that it would be playing with fire to make the errors that are discussed in Firekleen.  The help of an experienced Virginia construction attorney still remains the best firewall against taking the time to record a memorandum of lien and then finding that lien unenforceable.

As always I recommend that you read the case for yourself and to draw your own conclusions.

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