July 15, 2010
Alert: Virginia General Assembly Tweaks Mechanic’s Lien Notice Requirements
We’re pleased to welcome Christopher Hill back to the Construction Lien Blog for this guest post, bringing information about important changes to mechanic lien statutes in Virgina. Christopher G. Hill is lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC, a LEED AP, and member of Virginia’s Legal Elite in Construction Law. He specializes in mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals. Mr. Hill authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals.
I want to thank Scott for, once again, letting me guest post here at the Construction and Mechanic’s Lien blog.
I have discussed the picky nature of Virginia mechanic’s liens often over at my Construction Law Musings blog. Not only are the requirements and details strictly enforced, but the Virginia General Assembly seems to feel the need to tweak them in each of its sessions.
The latest change involves the use of a mechanic’s lien agent on residential projects. Beginning at the start of this month, July 1, 2010, a contractor can no longer depend on the failure of the owner to list a mechanic’s lien agent on the posted building permit. The new statute requires that a contractor go beyond merely reading the building permit and make a reasonable inquiry with the local building authority to determine the identity of the mechanic’s lien agent.
Another key change to this provision allows an owner to amend a building permit to add a mechanic’s lien agent at a date sometime after the beginning of construction. Based on this change to the statute, contractors must be constantly vigilant to any lien agent changes to assure that their required 30 day notices to the agent are properly filed because the owner is likely to bring a defense of failure to give notice by a contractor or subcontractor (regardless of if the trade is finished or not) should such notices remain un-filed or un-amended.
Aside from the obvious need to keep abreast of the changes to the mechanic’s lien statutes in Virginia, contractors and other construction professionals must also update their long standing policies for notices on residential projects. Consultation with an experienced construction attorney is key in assuring that you are both up to speed on legislative and judicial changes and that your business procedures take such changes into account.
January 21, 2010
Christopher Hill Launches Great Resource for Virginia Mechanic Liens
Our friend at Construction Law Musings, Virginia construction attorney Christopher Hill, just add a really great resource to his top-notch construction law blog for those interested in construction liens. A Mechanic’s Lien Page.
Before the lien page, Musings was already a great source of information on Virginia lien laws. The new page really organizes that data.
Here are a few of the articles you can find within the new section:
A Lien By Any Other Name Can Sound Just As Sweet (written by yours truly)
Q: What can you lien? A: What did you bring to the project?
Enjoy.
(P.S. If you’re looking for information on Virginia’s lien scheme right here at the Construction Lien Blog, you can just check out our Virginia tag. It even includes a post by Chris Hill).
January 26, 2009
Open Accounts and Mechanics Liens
The following post was written by a guest contributor to the Construction Lien Blog, Christopher Hill. Chris a construction attorney in the state of Virginia, leading the construction practice group at Durrette Bradshaw. He publishes a construction law blog titled “Construction Law Musings.” [Chris' profile at Construction Lien Blog]
Scott Wolfe, one of the contributors to this blog asked me for a piece on Virginia Mechanic’s Liens. Scott has written several good pieces on liens in the Commonwealth of Virginia, and I hope that this one proves as helpful.
In researching liens in the Commonwealth of Virginia, I ran across a question that should be on the minds of construction professionals in Virginia, particularly suppliers of materials. The question is simply “On an open account (based on a credit agreement or other arrangement), is each delivery to a particular contractor its own “work” such that the 90 day clock runs from the completion of each delivery, or do all deliveries to a particular project constitute the “work” on that project such that the 90 day clock only runs from the last delivery to the job site?” (How’s that for simple!)
The answer to this question is (drum roll please!)- “It depends.” (I know, you are shocked at such a “lawyerly” answer.)
The Virginia Supreme Court weighed in on this question in United Savings Association of Texas, F. S. B. v. Jim Carpenter Company, Record No. 951470 (2006). The Jim Carpenter case involved three different cases of liens that were filed by material men pursuant to various forms of open account contracts. You can read the case to see the particular facts of the case but in essence the owners/general contractors on the project argued that the material men could not lien for any materials delivered to a particular project outside of the 90 day lien window and the material men argued that all of the materials were delivered to the same projects and therefore all constituted one continuous contract.
The Virginia Supreme Court held that the intent of the parties controls. On the one hand, general deliveries to a contractor for general use (i. e. warehousing for use at some time in the future) each constitute a separate contract, each with its own 90 day clock. On the other, if the material deliveries upon which the lien is based are all delivered for the benefit of a particular project then they all constitute one continuous contract and the 90 day clock does not start to run until the last delivery is completed.
What do you, as a construction professional, take from this case? Be careful with your open accounts. Make sure that when delivering materials to a job site based upon an open account you are exceedingly clear with your purchase order or takeoff language that certain materials are to be delivered to a certain project. Failure to do so may lead a court to decide that the materials were a general delivery and cut off much or all of your recovery.
As with everything else to do with the picky issues with mechanic’s liens, all of the other requirements (150 day look back, notice, etc.) apply and good legal assistance is a must.
If you are interested in more thoughts on Virginia construction law, please check out my Construction Law Musings blog and join the conversation.
