Builders and Contractors Exchange
Weekly Bulletin: 21 sept 2007
Liens On Single-Family Homes Can Be Double The Trouble
By: Graham H. Watson
If you wish to claim and perfect a mechanics’ liens on a one- or two-family residential dwelling unit in Virginia, take notice: Virginia imposes additional requirements on liens for such structures where a mechanics’ lien agent, or MLA, has been designated.
Code § 43-4.01(B) states that a building permit for such structures, at issuance, must contain the name, mailing address, and telephone number of any MLA. The Code also requires such building permits to be posted “conspicuously and continuously” on the structure. If no MLA has been designated, the Code fails to impose additional requirements, but if an MLA has been designated, all potential lien claimants must give proper notice of such claims to the MLA.
What constitutes proper notice? The claimant must notify the MLA that he seeks payment for labor performed or materials furnished by registered or certified mail or by physical delivery, either (1) within thirty days of the first date that he performs labor or furnishes materials to or for the building or structure, or (2) within thirty days of the date such building permit is issued, if such labor or materials are performed or furnished prior to the issuance of the permit. The notice must include (1) the claimant’s name, mailing address, and telephone number, (2) the building permit number in question, (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.
Uncertain whether a particular property is a one- or two-family residential dwelling unit? You’re not alone. The Code of Virginia does not define these structures, but municipal codes, such as the zoning ordinances of individual counties, do provide definitions. Additionally, a recent case in Loudoun County, Chapman Brothers, L.L.C. v. Stile Stucco & Tile, Inc., 50 Va. Cir. 388 (1999), indicates that some Courts will look to the nature of the property at hand, and not the use to which it is being put. If you’re not certain, check the local code. If you do not see a building permit, you should check with the local issuing authority to determine if and when a permit has been issued, and if so, whether an MLA has been appointed. The Code imposes the responsibility to determine whether a permit has been issued on the lien claimant. As always, trust, but confirm.
The Code does allow some exceptions. Utility/site work contractors claiming a lien under Code § 43-3(B), which extends lien coverage to single units of condominiums and multi-unit structures for work on storm water facilities, sanitary sewers, etc. . . , are exempt from the requirements. Moreover, lien claimants can escape the thirty-day notice requirement where they limit the lien to labor performed or materials furnished after the date notice is properly given to the MLA. Lastly, anyone who records a memorandum of lien prior to the issuance of a building permit escapes the strict notice provisions of § 43-4.01.
Questions?
If you have any questions about this article or any other related matters, please contact:
This article is meant to bring awareness to this topic and is not intended to be used as legal advice.