Builders and Contractors Exchange
Weekly Bulletin: 25 May 2007
Deadlines To File Mechanic's Liens In Virginia
By: John R. Lockard
On private construction projects, a mechanic’s lien is an effective tool to ensure payment for a contractor’s work. A mechanic’s lien is not effective, however, if it is not filed within the time required by the Code of Virginia. Generally, a mechanic’s lien must be filed no later than 90 days from the last day of the month in which the contractor last performs labor or furnishes materials for the project, but in no event later than 90 days from the time the project is completed or the work otherwise terminated. (NOTE: Other deadlines apply to claims for site development work or work performed on one or two unit family residences. These deadlines are not addressed in this article.
The statute presents two issues: (1) What is the date that the contractor “last performs labor or furnishes materials,” and (2) when is the project “complete” or the work otherwise terminated? Unfortunately, the Code of Virginia does not provide clear guidance on these issues. For example, the law does not expressly state whether punchlist or warranty work would qualify as the performing of labor or furnishing of materials for the purposes of the mechanic’s lien statutes.
Likewise, the Code of Virginia provides no firm definition of when a project is completed. This can create uncertainty for a contractor. What if the project is “complete” in the same month that the contractor last performed labor or provided materials? In such a case, the contractor does not have 90 days from the end of the month to file its mechanic’s lien, but only 90 days from the date that the project was “complete” – whatever day that may be.
To be safe, a contractor should file its lien within 90 days after it completes its last work on the project, not including punchlist or warranty work. This will avoid any uncertainty regarding the date that the contractor “last performs labor or furnishes materials” or when the project is “complete.” Every situation, however, is different, and when in doubt, a contractor should consult with an attorney who is experienced in construction law, especially the filing of mechanic’s liens.
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.