Builders and Contractors Exchange
Weekly Bulletin: 16 Oct 2006
No Notice, No Mechanic's Lien: The Rule For One and Two Family Residential Projects
By: Burns G. Lewis
An often overlooked provision of the Virginia Code can spell disaster for contractors furnishing labor or materials with respect to a one or two family residential dwelling. Virginia Code § 43-4.01 provides a separate carve out provision for one and two family residential projects than for commercial projects: the Code requires that a contractor for a one or two family residential project (this does not include contractors for site development improvements or for streets, stormwater facilities, sanitary sewers or water lines, etc. as set forth in Virginia Code § 43-3(B)) notify the mechanic’s lien agent as identified on the building permit within thirty days of the first date that the contractor performs labor or furnishes materials to or for the building or structure or within thirty days of the date the building permit is issued, if the labor or materials provided by the contractor are first performed or furnished prior to the issuance of the building permit. Failure to notify the mechanic’s lien agent will bar the contractor from filing any mechanic’s liens related to the project. All too often mechanic’s liens are deemed unenforceable because the contractor inadvertently failed to give timely notice. Thus, for every project, the contractor should ensure that it has provided notice immediately upon furnishing services or labor.
Fortunately, the failure to give notice within thirty days of providing services or materials does not necessarily bar the filing of a mechanic’s lien. § 43-4.01(C) provides some relief. The contractor may provide notice after thirty days of first providing services; however, any lien filed may only be related to services performed or materials furnished on or after the date notice is given to the mechanic’s lien agent. Of course, these requirements do not apply if there is no building permit or a designated mechanic’s lien agent, but it is the contractor’s responsibility to ensure that if required, notice is given.
In a nut shell, it is imperative for every contractor providing services and materials, including air conditioning, carpentry, lumber, etc. on a one or two family residential project to ensure that the mechanic’s lien agent is notified immediately upon beginning work.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.