We’re pleased to welcome

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.

According to the Code of Virginia, lien notice must only be provided on single or two family residential projects, and only if a Mechanics Lien Agent (MLA) is designated by the property owner in the project’s building permit.

If a MLA has been designated, the notice must be provided within 30 days of the contractor beginning work.  If provided later, a contractor can only lien for materials or labor provided 30 days prior to the sending of notice, and beyond.

Notice must not take a particular form, but it does have to include (1)  The name, mailing address and telephone number of the person (or company) sending the notice; (2) The building permit number; (3) A description of the property as shown on the building permit; and (4) A statement that the person filing such notice seeks payment for labor performed or material furnished

While the rule is simple and requires notice only in limited circumstances, the difficulty really becomes determining whether a MLA has been designated, and who exactly the MLA is.

A contractor can usually contact the building departments to get the mechanics lien agent on file.  However, Express Lien can also investigate this matter for the contractor when preparing the 30-day notice.