Construction Frequently
Asked Questions.

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Preliminary Notice FAQ

A Virgina preliminary notice is a letter sent by a contractor or supplier to the property owner at the start of a construction project. In many states, a preliminary notice is required to be sent in order to secure the right to lien.

On non-residential projects, parties who have no direct contractual relationship with the property owner are required to serve a preliminary notice [i].

On residential projects, all parties are required to serve a preliminary notice if a Mechanics Lien Agent is identified on the building permit [ii].

On non-residential projects, the preliminary notice must be served within 30 days of project completion.
On residential projects where a Mechanics Lien Agent is identified on the building permit, the preliminary notice must be served either within 30 days of your first day of work or within 30 days of the day the building permit was issued.

On non-residential projects, failing to serve a Virginia preliminary notice may not hold the property owner or the general contractor liable for payment.

On residential projects, failing to serve a Virginia preliminary notice revokes your lien right. If you miss either of the 30-day deadlines, you can still serve a preliminary notice but a potential mechanics lien may cover your services starting from the date that the notice is served.

Intent To File FAQ

A Virginia notice of intent to lien is sent before the filing of a mechanics lien becomes necessary. Although only a number of states require that this notice be sent, many construction participants send a notice of intent to lien as an uncostly way to have payments for invoices settled.

No, a Virginia notice of intent to lien is not required in the lien process. However, you may opt to send one anyway as it reminds the property owner of any outstanding balance.

In Virginia, a notice of intent to lien may be sent 10 days after filing a mechanics lien. It advises the owner of your intention to record a lien if the payment is not satisfied.

Failing to send a Virginia notice of intent to lien has no effect on your lien rights because this notice is not required in Virginia.

Mechanics Lien FAQ

A Virginia mechanics lien is an effective tool that helps make sure you will be paid for the construction materials and/or labor you supplied. It is a legal claim that can effectively recover payment for contractors and suppliers.

This means that if you file a valid mechanics lien in Virginia and you do not get paid for your work, you have the right to enforce the lien through a lawsuit. This enforcement action can either prompt the client to settle or force the sale of the property. The proceeds of the sale will be used to settle your unpaid bill.

If you successfully file a Virginia mechanics lien, you have an interest in the improved property. When a mechanics lien is filed on the property you worked on, the property becomes collateral for uncollected payments.

According to Virginia Code 43-3 [iii], parties performing labor or furnishing materials of the value of $150 or more are eligible to file a mechanics lien. These parties may include general contractors, subcontractors, and material suppliers.

A mechanics lien in Virginia must be filed within 90 days of the last day of the month in which labor or materials were last furnished, and within 90 days of the day the project is completed.

A Virginia mechanics lien is enforceable within 6 months of the date the lien was filed or within 60 days of the day the project was completed, whichever is later.

Virginia laws prescribe a specific format and language for a valid mechanics lien [iv]. A valid Virginia mechanics lien must include the following:

  • Name and address of the owner
  • Name and address of the claimant
  • Name and address of the party who hired the claimant
  • Contractor license or certificate number of claimant
  • Issuance and expiration dates of license or certificate
  • Type of services furnished
  • Amount claimed
  • Type of structure on which the work is done
  • Brief description of the property location
  • Date from which amount is claimed

The Virginia mechanics lien must also be notarized and must include all appropriate notary information.

Cancelling a mechanics lien is not a requirement in Virginia upon satisfaction of the lien. However, it is still a good business practice to do so once the outstanding payment has been duly settled.

The “pay-if-paid” clause is enforceable in Virginia if clearly and unambiguously stated in a contract or agreed upon by the parties involved.
The “pay-when-paid” clause is also enforceable in Virginia.

References:

[i] Virginia Code § 43-3
[ii] Virginia Code § 43-11
[iii] Virginia Code § 43-4.01
[iv] Virginia Code §§ 43-5, 43-8, 43-9

Handle.com provides answers to Frequently Asked Questions (FAQs) to contractors and others who are seeking information regarding preliminary notices, intent to file, mechanics lien, and other construction questions. These are provided for informational purposes only, and we cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies.

Virginia documents

Miller Act

The Miller Act protects the rights of subcontractors working on or who have worked on government projects.

Waiver

Waivers release your right to file a mechanics lien in case of non-payment. Some have conditions so ensure you're sending the correct lien waiver type.