How to file a Virginia Mechanics Lien

Having to file a mechanics lien can be a lot to juggle, plus lien claims always have the potential to affect business relationships. However, there’s nothing more important than getting paid the money you’ve earned, and from time to time, a lien is necessary. When you’ve tried everything else and you still are facing a payment issue, then a mechanics lien can be a great tool to force payment.

That’s why we’ve created this straightforward guide for Virginia-based contractors and suppliers —  a how-to guide to help make filing a Virginia mechanics lien go as smoothly as possible.

Virginia mechanics lien law

The state of Virginia has one of the most powerful mechanics liens in the country. Because of this, there are many strict requirements that must be met in order to secure your lien rights. Including preliminary notices which are required only in specific circumstances. For a full explanation of those requirements, head over to our Virginia Preliminary Notice Overview & FAQs page.

Licensing requirement

In order to maintain your lien rights, you must hold the appropriate Virginia contractor’s license for the work performed. We always recommend obtaining all necessary licenses that may be required in whichever state you primarily work in, but this is especially important in Virginia.

This is a topic that’s brought up regularly in our Ask an Expert Center:

1. Prepare a Virginia mechanics lien form

First and foremost, you need to start with the correct mechanics lien form, also known as a Memorandum of Lien in Virginia. There are a ton of resources out there that offer mechanics lien forms. However, there’s no guarantee that they are accurate or even valid.

Be sure you start with the correct form. That’s because depending on your role, a different form may be required.

Download free Virginia mechanics lien forms

Virginia requires different lien forms for General Contractors, Subcontractors, and Sub-subcontractors. These free lien forms were prepared by construction attorneys to meet Virginia’s statutory requirements.

Basic text to create your own lien form can also be found in Virginia Code Section 43

How to fill out the lien form

Virginia’s lien law sets out what needs to be included in your lien form. It’s important to make sure that the lien contains all the required information in order to be valid. Although minor errors aren’t always fatal to your Virginia lien claim, there’s no reason to tempt fate. 

Larger mistakes could potentially invalidate your lien claim, and over-exaggeration or fraud can lead to criminal penalties in Virginia.

Keep in mind: Depending on who hired the lien claimant, different information might be required. But here is a summary of all the information you’ll need to properly fill out your lien claim form.

1. Owner information

This section is pretty straightforward, just provide the name and address of the property owner. If you didn’t contract directly with the owner, this can tend to get complicated depending on the circumstances; such as if there’s more than one owner, a change in ownership during the project, or if the work is commissioned by a tenant. Here’s a good resource to get you started: How to Find the Property Owner on a Construction Project.

2. Claimant’s information

This is an easy one, provide your full name and address. If you’re filing on behalf of a company, be sure to use the full, legal, registered business name, including the business designation (i.e., LLC, Inc., etc.) In addition to your name and address, you also will need to provide any license or certificate information as well. This includes the license/registration number issued by the Board of Contractors, the date it was issued, and the date that the license or certificate expires.

3. Lien amount

This amount should be the reasonable value of labor or materials that were provided to the project that forms the basis of your mechanics lien claim. Virginia doesn’t allow for the inclusion of any attorney’s fees, lost profits, or any indirect or consequential damages. Also, remember that VA mechanics liens can only cover labor or materials for the 150 days preceding the last day they were provided. If you include anything provided before that date, the lien will be invalid.

4. Amount of claim, not yet due

This section was a recent addition in 2019. Under this section, this is where the claimant will identify any amounts included in their lien claim that have “yet to become due.” This will typically involve things such as retainage, or any amounts withheld under a contingent payment clause (i.e. pay-if-paid, or pay-when-paid clauses). If, however, the claim is filed after the completion of the project, and there aren’t any amounts under the contract that haven’t become due yet; then this section should be left blank.

5. Contractor license/certificate information

If the work being performed requires a license or certification, the number, date issued, and the date of expiration must be included.

6. Property description

The requirement in Virginia states that this should be a brief description of the property on which the lien is claimed. So, a full legal property description isn’t required. Furthermore, there is a section of the law that states, “no inaccuracy in the memorandum filed, or in the description of the property to be covered by the lien, shall invalidate the lien if the property can be reasonably identified… and is not willfully false.” That’s a nice little addition that is rare in most state mechanics lien laws.

7. Date from which interest is claimed

This date is that date the debt became due and payable. This date should be included in your contract documents. More simply put, when were you supposed to be paid, and weren’t.

8.  Statement that you intend to claim the benefit of the lien

According to Virginia’s statute (§ 43-4):

“The memorandum shall … [include] a statement declaring his intention to claim the benefit of the lien.”

Code of Virginia § 43-4

9. Signature and notarization

Now that all the pertinent information has been filled out, it’s time to sign your document, right? Not so fast: A Virginia mechanics lien must be notarized in order to be valid. Be sure that you are in front of a notary public before you sign your lien claim document.

10.  Certificate of Mailing

A General Contractor must provide a certificate of mailing to the Owner.  As a best practice, this certificate can be added to any “level” of contractor’s form.

2. File the lien with the county recorder office

Now that your Virginia memorandum of lien has been filled out correctly, it’s time to figure out how to actually record your claim.

Deadline to file a Virginia mechanics lien

The timing and deadline requirements in Virginia are a bit complicated. Let’s try and break this down as simply as possible.

General filing deadline

To perfect a mechanics lien claim in Virginia, the claim can be filed at any time during the project, but no later than 90 days from the last day of the month in which the claimant last furnished labor or materials to the project. According to Virginia law, no liens can be filed later than 90 days after the project is completed. 

However, it’s not that simple in Virginia. There are a few extra deadlines that need to be met, which are discussed below.

Virginia’s 150-day rule

It’s important to note that in Virginia there is something we like to call the 150-day rule. A lien claim will only cover labor or materials furnished 150 days preceding the last day of furnishing or the recording of the lien, whichever is earlier. 

So if the project is going to last longer than 150 days, the law allows you to file multiple liens on the same project.

Holding the owner personally liable

There’s still one more thing worth mentioning when filing a lien in Virginia. In order to hold the property owner or GCs personally liable, the lien claimant must also file the lien after they’ve completed work, but within 30 days of completion or termination of the project. 

To impose personal liability, they must also send a ‘Post Work Notice’ 30 days from the last date they provided service or materials to the project. This notice must be sent by certified mail, with return receipt requested.  This is an extra step in addition to filing the lien, and acts as a sort of ‘non-lien’ claim. 

Read a full analysis of Virginia’s lien deadlines.

Where to record a mechanics lien in Virginia

The Virginia lien law states that the memorandum should be recorded in the clerk’s office in the county or city in which the building, structure or railroad, or any part thereof is located. If the property spans more than one county, your claim should be filed in both. 

The specific form requirements and filing fees can vary from county to county. That’s why it’s important to reach out to the office ahead of time to be sure your claim will be accepted. Here are 4 Essential Questions to Ask your County Recorder to get you started.

There are a lot of counties in Virginia. In order to make this process a bit simpler, we’ve put together a list of all the county recorder’s office. Find your county office in the list below for contact information, filing tips, and more: 

Tips for filing a Virginia lien

Special notice requirement for general contractors

In order for a GC to perfect their lien claim, the memorandum of lien should also include a certification that a copy of the lien was sent to the owner at their last known address. 

It stands to reason that since this certification is a requirement, Gs filing a lien claim in Virginia should send a copy of the lien claim before filing at the county recorder’s office.

File as early as possible

Virginia has another unusual mechanics lien rule that’s worth mentioning. If the subcontractor or another lower-tiered party on the project waits to file a lien until after the GC is paid by the property owner, the lien will fail because the owner already paid once and owners can’t be forced to twice for the same work.

So what does this mean exactly? While claimants technically have 90 days to file their liens, the most effective deadline to file for a subcontractor or lower-tiered party is before the GC is paid. So the earlier you file your lien, the better.

For a deep dive on this issue, you can read Virginia’s Payment Chain & Why It’s Important to Lien Early.

Choose the right filing method

The easiest way to ensure that your claim is filed correctly, and recorded in a timely fashion is to go down to the office yourself. If you are mailing in your claim, be sure to not only include the proper filing fees (even overpayment will be rejected) but also a self-addressed, stamped envelope so a copy of the recorded lien can be kept for your records.

Some counties in Virginia allow for documents to be recorded electronically. If you choose this route, you will likely need to register with an e-filing service and scan a copy of the mechanics lien. Be sure that the scanned document meets all the formatting and dimensions the county may require.

3. Send a notice

All lien claimants must send a “Notice of Lien” to parties above them in the payment chain, and in particular, the Owner, preferably at the same time as filing.  

Such notice should be certified mail, return receipt requested.  This notice informs the Owner and those upstream to stop paying monies.  If the Owner or other upstream party pays money out on the Project after receipt of this Notice, it is subject to paying twice.

After filing your Virginia mechanics lien

Virginia mechanics liens are only valid for a certain amount of time. Now that you’ve successfully secured your mechanics lien rights, its time to wait and see if the lien was enough to induce payment.

Enforcement action

The deadline to enforce your Virginia mechanics lien is a bit of a moving target. The lien will only be effective for 6 months after the lien was filed, or after 60 days from the completion of the entire project (whichever occurs later). 

If an enforcement suit is not filed in the Circuit Court where the project is located within this timeframe, the lien will be “dead letter” and unenforceable. Keep in mind that an enforcement action is a full lawsuit, which is both time-consuming and costly. You’ll want to consider the amount of money in dispute to determine if foreclosure is worth it.

Additionally, an enforcement action in Virginia has its own specific challenges, see Who to Include in a VA Mechanics Lien Enforcement Action.

There is one more step you can take to try and induce payment before filing a lawsuit. This is known as a Notice of Intent to Foreclose. Consider this one last warning that if you aren’t paid within x amount of days, you are both willing and able to file a lawsuit against the party. Most of the time, this is enough to loosen the grip on your money.

Release of the lien claim

If you’ve been paid, congratulations! There is no specific requirement in the Virginia mechanics lien law to release the claim once the debt is paid. But generally speaking, payment is made on the condition that the lien is released in exchange. To do so is a simple matter of filing a VA mechanics lien release form, in the same office where the lien claim was filed.

Additional Virginia resources

How to File a Virginia Mechanics Lien - Step by Step Guide to Get You Paid
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How to File a Virginia Mechanics Lien - Step by Step Guide to Get You Paid
How to File a Virginia Mechanics Lien. Nobody walks onto the job wanting to file a lien, but when payment isn't coming on a construction project, sometimes a mechanics lien is necessary. With that in mind, here's a look at how to file a Virginia Mechanics Lien.
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