In Virginia, as long as you are able to "trace" your materials or labor to the property, how far down the contract chain you are does not impact your ability to file a lien.
A Virginia mechanic’s lien may have the highest priority of any in the United States. The mechanic’s lien claimant will have priority over the construction loan bank. The Virginia mechanic’s lien will also survive a foreclosure or any other sale of the property. Bankruptcy will not defeat lien rights.
It is important to keep in mind that because the Virginia lien is so powerful, courts have “strictly construed” the mechanic’s lien law, meaning claimants must be extremely careful to follow each and every legal requirement or the mechanic’s lien will be invalid.
| First Section 43-11 Notice | Should be sent before contractor supplies labor or materials. |
| Mechanic’s Lien Agent Notice | Must be sent within 30 days after contractor begins supply of labor or materials. |
| Payment Bond Claim Notice | Must be sent within 90 days after contractor last supplies substantial new labor or materials. |
| Mechanic’s Lien | Must be filed before the earlier of: |
Yes, in Virginia a claimant without a required contractor’s license will be unable to enforce their mechanic’s lien, even if the contractor mistakenly believes they complied with the statute.
However, a contractor that substantially performs the contract and did not have actual knowledge that a license or certificate was required may be able to enforce the contract in order to obtain judgement, but will not have mechanic’s lien rights.
Claimants must give notice to the mechanic’s lien agent (MLA) when the project involves construction of one- and two-family residential dwellings. A real estate owner may (but is not required to) designate a mechanic’s lien agent when a building permit is issued. If an MLA is designated, then any contractor supplying labor and materials to this project must provide notice that the contractor seeks payment for labor performed or materials furnished.
Any contractor filing a lien for site development improvements under Virginia Code §43-3(B) (streets, storm or sanitary sewer, waterlines or roads) is expressly excluded from the MLA statute and does not need to give this notice.
As for what type of notice and how it is given, there is no particular form required for a mechanic’s lien agent notice. By statute, however, the notice must contain:
The building permit contains all outside information necessary to send an MLA notice. All other information necessary for the notice is obtained from the contractor’s own records. A convenient form for such a notice is the Virginia Mechanic’s Lien Agent Notice (MLA) in the Appendices.
A similar form, the Virginia §43-11 and MLA Notice in the Appendices, if properly filled out, will also constitute the first notice necessary to create personal liability on the part of the owner pursuant to §43-11 of the code.
Section 43-4.01(B) states that “an inaccuracy in the Notice as to the description of the property shall not bar a person from claiming a lien under this title . if the property can otherwise be reasonably identified from the description.”
There are actually two time limits operating from the day of last work. The time limit for filing the mechanic’s lien counts forward from the last day of work. The claimant must also count backwards 150 days from the last day of work. The contractor is generally not allowed to include labor and materials supplied outside this window in any one mechanic’s lien.
The 150-day rule does not apply to retention held up to 10% of the total contract price or to sums not yet due because of a contract “pay when paid” clause. The entire lien is invalid if it includes some dollar amounts outside the 150-day window. See Carolina Builders Corp. v. Cenit Equity Co., 257 Va. 405, 512 S.E.2d 550 (1999).
