Be Ready to Lien in 2009 (but Be Careful!)

Originally posted 2010-07-30 12:28:30.

2009 is likely to be a year in which many construction liens are filed. As all of us in construction know, and as reported in the AGC SmartBrief, the beginning of 2009 and through 2010 will likely show an even greater downturn in the commercial and residential markets. These economic times will make mechanic’s liens, bonding and other proactive approaches to collection all the more important.

However, you need to be careful in filing your liens, especially in Virginia. Even with my experience, I am always amazed at how specific the requirements for filing mechanic’s liens in Virginia (and other states) can be.

For example, in a recent case out of Fairfax County, Artitech, Inc. v. Kaled Naser, et. al., CL07-5431 (Va. 2007), the Court invalidated a lien because the affidavit required to be filed with the lien to verify the amount claimed did not identify the capacity of the signatory of the affidavit. The Court reasoned that the Virginia statute requires that the lien be verified by the claimant or its agent. Therefore, the failure of the affidavit to specifically identify the affiant as an agent for the lien claimant invalidated the entire lien.

As another example, this one from the Virginia Supreme Court in Britt Construction v. Magazzine Clean, LLC, 623 S.E.2d 886 (Va. 2006) the Court invalidated a lien for which the Owner had actual notice because Britt did not append a certification of mailing to the mechanic’s lien. In short, this is yet another victory of form over substance in the Virginia mechanic’s lien jurisprudence.

The lesson here is that mechanic’s lien law in Virginia is fraught with pitfalls for the unwary and legal counsel from an experienced construction lawyer familiar with this field is required to assure that your rights are protected. Filing a lien memorandum without advice of counsel (whether me, through a service like ExpressLien coupled with advice of counsel, or using an attorney with experience in this area) is never a good idea because one misstep can cause you to lose your lien rights.

I look forward to continuing the dialog in 2009!

As always, I welcome your comments. Also, please subscribe to keep up with this and other Construction Law Musings.

PS: Here is another link about increased lien filings (Thanks to Scott Wolfe for pointing this out).

PPS: More on the specific timing requirements in the statute and how cases interpret them.


Be Ready to Lien in 2009 (but Be Careful!)

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