The Picky Nature of Mechanic’s Liens (or Why you need to count back from 150 before filing)

On numerous occasions here at Musings, I have discussed the almost ridiculously picky nature of mechanic’s liens in the Commonwealth of Virginia. The so called “150 day rule” found in Virginia Code Section 43-4 is no exception. The 150-day rule means that a contractor or material man can only include in a mechanic’s lien money due for labor or materials provided within 150 days of the date of filing of the lien or the last day that labor or materials are provided whichever is earlier.

A recent Virginia Supreme Court case considered this rule and found the inclusion of money for materials provided outside of this 150-day window to be a fatal defect in the lien memorandum rendering the mechanic’s lien unenforceable.

In Smith Mountain Building Supply, LLC v. Windstar Properties, LLC, Record Numbers 80651 and 80652, Smith Mountain filed two separate memoranda of lien that included money owed by Windstar Properties for materials admittedly supplied to the project but provided outside of this 150-day window. The Court, reconciling two prior decisions and despite an argument by Smith Mountain that inclusion of these sums was an “inaccuracy” covered by Virginia Code Section 43-15, determined (as is uniformly the case) that the 150-day rule is to be strictly enforced and therefore both liens were invalid and unenforceable.

In short, make sure that you get paid for your early labor and materials first and account for these payments by clearing out the early invoices to keep all of your accounts receivable on a project within the 150 days. Also, on a long project during which you may have labor or materials that fall outside of this window, multiple liens are both allowed and necessary to protect your rights.

As always, experienced legal counsel is helpful in this often confusing area.

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