As July 1, 2019 approaches with its inevitable changes to the Virginia Code, I wanted to remind you once again that the statutory form for a Virginia mechanic’s lien will change as of that date.
HB2409 passed both houses of the General Assembly and has been signed by the Governor. This bill reconciled the language found in Virginia Code Sec. 43-4 with the various forms for general contractor, subcontractor and sub-subcontractor/supplier forms found in later sections of the code. As you will see if you download the .pdf of the bill as signed, this involved some tweaks to 43-4 and some updates to the mechanic’s lien forms that are in the code. The recent Desai case from the Virginia Supreme Court made it clear that such action was necessary.
Of particular note is an addition of a specific section of the form spelling out which portion if any are claimed but not due (for instance retention or money subject to pay if paid clauses) as of the date of the recording of the memorandum of lien. Failing to spell this out on your memorandum of lien could potentially cost you a valid lien given the picky nature of these powerful but finicky beasts. Another minor change was an amendment to 43-4 to require a statement of a date from which interest was claimed. This last was part of the form to begin with so this won’t affect your form.
As always, be sure to work with an experienced Virginia construction attorney when calculating deadlines and populating this new form.
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