Virginia is one of the states that require the submission of a preliminary notice, but only in select instances. Not all construction participants are mandated to serve a preliminary notice in Virginia, but those who are required to do so must ensure that they comply with this requirement.
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This guide explains the process for serving a Virginia preliminary notice, also referred to as the Notice to Mechanics Lien Agent.
- Who must serve a preliminary notice in Virginia?
- When do you serve a Virginia preliminary notice?
- On whom do you serve a Virginia preliminary notice?
- What happens if you fail to serve a Virginia preliminary notice?
- How to file a Virginia preliminary notice
- Best practices for serving a Virginia preliminary notice
Who must serve a preliminary notice in Virginia?
You are obligated to serve a Virginia preliminary notice only when you meet the two conditions above. Note, however, that serving a preliminary notice is still allowed even if you are technically not required to do so.
Also, note that Virginia has an optional preliminary notice that can let a construction participant hold a property owner or a general contractor personally liable for the full debt. This notice is not mandatory for any party.
When do you serve a Virginia preliminary notice?
The Notice to Mechanics Lien Agent must be served within the first 30 days of work. In case the building permit is posted after you have already started working, the deadline for serving this Virginia preliminary notice is within 30 days of the date the building permit was issued.
There is no deadline associated with the optional preliminary notice in Virginia. If you choose to send one, you are advised to serve it as early as possible.
On whom do you serve a Virginia preliminary notice?
As implied by the name, the Notice to Mechanics Lien Agent is served on the mechanics lien agent, or the property owner.
The optional preliminary notice is served on either the property owner or the general contractor.
What happens if you fail to serve a Virginia preliminary notice?
Failing to serve the Notice to Mechanics Lien Agent within the 30-day serving period will not necessarily be fatal to your lien rights. You will still have the right to file a mechanics lien, but the amount that you can claim will be limited to the amount that is yet to be paid to the general contractor or the party who hired you.
How to file a Virginia preliminary notice
1. Prepare the Notice to Mechanics Lien Agent form
According to Virginia Code § 43-4.01(B), the Virginia preliminary notice form must include the following information:
- Your name, mailing address, and telephone number
- Your license or certificate number issued by the Board for Contractors, if any
- The date the license or certificate was issued and the date the license or certificate expires
- The building permit number in the building permit
- A description of the property as shown in the building permit
- A statement that the person filing the notice seeks payment for labor performed or material furnished
2. Deliver the notice to the mechanics lien agent
After preparing the Notice to Mechanics Lien Agent, you should then serve it on the lien agent via certified mail with return receipt requested. You may also choose to serve the preliminary notice on the property owner.
Make sure that you keep the return receipt so you are able to prove that you have served the notice. In Virginia, the preliminary notice is considered delivered on the day of mailing.
Also note the 30-day deadline for serving this preliminary notice. The Notice to Mechanics Lien Agent in Virginia should be served within the first 30 days of the day when you first started furnishing labor or materials to a project.
Even though missing the 30-day deadline will not affect your ability to record a mechanics lien, it can limit the amount that you can claim on your lien. You are strongly encouraged to serve the preliminary notice as early as possible to ensure that your full lien rights are protected.
Best practices for serving a Virginia preliminary notice
1. Serve the preliminary notice early
If possible, serve the Notice to the Lien Agent on your first day of work. It is generally best practice to serve your preliminary notice as early as possible to avoid missing the deadline. While late preliminary notices are accepted in Virginia, serving the preliminary notice on time allows you to exercise your lien right to its full extent.
2. Verify the accuracy of the information listed on your preliminary notice form
Even though Virginia will not necessarily invalidate your preliminary notice based on simple typographical errors, it is still a good idea to always check that the details written on your preliminary notice are correct and accurate. Pay careful attention to the description of the property and stick to what is written in the building permit.
3. Do not forget to file a mechanics lien if necessary
The Virginia preliminary notice contains a statement that seeks payment for your services, but this document is not the same as a mechanics lien. It does not get filed under the property’s records, which does not encumber a property. If payment disputes arise, you should remember to file a mechanics lien to have stronger leverage in recovering your payment from your client.