Virginia Contractors CAN Waive Lien Rights
We’ve posted in the past about how difficult it is for Louisiana contractors to waive their rights to lien in a construction contract. In that post it was explained that under Louisiana law, a party cannot waive a right that it may only possess in the future.
The question of whether a party can waive its right to lien at the time of contracting is treated differently from state-to-state.
It seems that in Virginia, a party absolutely can waive its right to lien a project at the time of contracting. United Masonry, Inc. v. Riggs Nat’l Bank, 233 Va. 476, 357 S.E.2d 509 (1987).
The availability of lien waivers are explained in Fullerton & Knowles’ Construction Law Survival Guide.
Contractors in Virginia should be cautious before signing a construction contract that they do not waive their right to lien the project in the event of non-payment. While the law prohibits these type of clauses in other states, in Virginia contractual lien waivers are allowed.
3 users responded in this post
Scott,
This has two sides to it. From an “upstream” perspective, I always want my clients who are paying money to get lien waivers prior to payment. From a “downstream” side, I recommend no waiver until certainty of payment.
FYI- It is a felony in Virginia to file a false lien waiver.
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