Construction Frequently
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Preliminary Notice FAQ

A West Virginia preliminary notice is a letter sent by a contractor, laborer 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.

You are not expected to serve a preliminary notice in West Virginia, but the state allows parties to serve a notice prior to commencing work on a project.

It is a good idea to serve a preliminary notice in the state as a way of letting others know of your participation in a project.

Your lien rights are not affected if you do not send a Virginia preliminary notice.

Intent To File FAQ

A West 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, sending a Notice of Intent to Lien is not a requirement for any construction participant in West Virginia. However, it is still advisable to do so because it lets the receiver know of your intention to lien and could prompt them to settle the payment dispute.

In West Virginia, a notice of intent to lien may be sent 10 days before filing a mechanics lien, even if it is not required to do so. It advises the owner of your intention to record a lien if the payment is not satisfied.

Failing to send a West Virginia Notice of Intent to Lien has no direct effect on your lien rights.

Mechanics Lien FAQ

A West 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 West 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 West 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 West Virginia Code 38-2-1 – 38-2-6a, parties up to the third tier who provide labor or materials to a construction project have lien rights. Engineers, surveyors, and architects may also file a Virginia mechanics lien. [i]

A West Virginia mechanics lien must be filed within 100 days after completion of work [ii].

A West Virginia mechanics lien is enforceable within 6 months after the date it was filed [iii]. This means a claimant must enforce their mechanics lien within this period or else it expires.

A West Virginia mechanics lien must contain the following documents and attachments [iv]:

  • The name of the property owner
  •  The name of the lien claimant
  • The name of the party who hired the claimant, if different from the property owner
  • A brief description of the nature of the contract
  • A definite and identifiable description of the real estate
  • The contract amount
  • The unpaid amount being claimed on the lien
  • Notary information

The West Virginia mechanics lien must be notarized.

West Virginia does not have specific license requirements for its potential lien claimants.

Once a lien has been settled, a lienor must file a discharge of lien in the same county clerk office where the original mechanics lien was filed [v]. There is no specific deadline for filing a discharge of lien.

The pay-if-paid clause is enforceable. There are currently no West Virginia courts that have considered the validity of the pay-when-paid clause.

References:

[i] West Virginia Code § 38-2-1 – 38-2-6a

[ii] West Virginia Code § 38-2-7

[iii] West Virginia Code § 38-2-34

[iv] West Virginia Code § 38-2-9 – 38-2-13

[v] West Virginia Code § 38-2-36

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.

West 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.