The Virginia preliminary notice requirements are particularly unique compared to other states. Although not generally required, they may be under certain circumstances and could affect the amount of protection a mechanics lien can provide. Let’s take a look at how Virginia preliminary notices can help you get paid what you’ve earned on your next construction project.
Learn more about Virginia’s notice rules & requirements
What is a Virginia preliminary notice?
The state of Virginia as a rather interesting preliminary notice scheme. In most circumstances, a preliminary notice isn’t required on Virginia construction projects.
The only time a preliminary notice an actual requirement is in very limited circumstances: That’s if the project is a 1-2 family residential property and a Mechanics Lien Agent is designated in the building permit. This article will refer to this type of notice as a “Notice to Mechanics Lien Agent,” and is covered under VA Code Ann. §43-4.01.
On all other projects, or if a mechanics lien agent isn’t designated on a residential project, then a preliminary notice isn’t required to secure mechanics lien rights. However, there are other benefits that the state of Virginia provides if a preliminary notice is sent, this type of notice is a Notice to Owner/Contractor and is covered under VA Code Ann. §43-11.
In order to impose personal liability, there are technically two notices that are required: a Notice to Owner/Contractor, and what we refer to as a “post-work notice.”
Download free, Virginia Preliminary Notice Forms here
Notice to Mechanics Lien Agent
Why send a Virginia preliminary notice?
Generally speaking, even if a preliminary notice isn’t required by law, or provide additional legal benefits; there’s no reason not to send one. They are a great way to inform the owner that you are working on their property, and which labor or materials you are providing to the project. This can help increase visibility, open up the channels of communication, and speed up payment times as well.
Notice to Mechanics Lien Agent (residential projects)
Sending a Notice to Mechanics Lien Agent is an important step to securing your right to payment if required. Whenever the notice is sent, it will affect the amount of payment that can be secured by a mechanics lien. A Virginia mechanics lien can only secure the amount of money the owner has yet to pay the GC, or the amount the GC owes the sub (depending on your role in the project).
Section 43-11 Notice
A Section 43-11 Notice will not affect the ability to file a mechanics lien, but it can help claimants recover more than what might be recoverable under a mechanics lien claim. As we stated above, a VA mechanics lien can only be claimed for the unpaid amount to the hiring party. However, by sending a Section 43-11 Notice, the notifying can make the owner and/or the GC personally responsible for the full debt.
Who needs to send a Virginia preliminary notice? Who is it sent to?
Notice to Mechanics Lien Agent (residential projects)
For residential projects, any potential lien claimant must give a preliminary notice if there is a building permit that contains the name, mailing address, and telephone number of the mechanics lien agent. This requirement has adapted over the years, and since 2010 contractors have an additional obligation. If the permit isn’t posted or doesn’t contain the MLA’s information the contractor is now obligated to contact the proper authorities to determine when the permit was issued and the name of the appointed MLA if there is one.
If all of these circumstances are present, then the notice must be sent to… you guessed it, the appointed mechanics lien agent. Additionally, the owner has the ability to amend their building permit to add an appointed MLA. So project participants on such projects should keep a close eye on the permit in case any changes occur.
Section 43-11 Notice
This type of notice isn’t necessarily required by any party, but anyone who wishes to hold either the owner, the general contractor or both personally responsible for the full amount of any unpaid debts; may want to send this notice. It should be sent to either or both parties, depending on who the claimant wishes to make personally liable. Best practice, send this notice to both parties.
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What needs to be included in a Virginia preliminary notice?
What needs to be included in a Virginia preliminary notice?Notice to Mechanics Lien Agent (residential projects)
A Virginia Notice to Mechanics Lien Agent must contain certain information in order to be considered valid. This information includes the following:
- Your contact information
- Your contractor license of certificate information
- This includes the license/certificate number, issue date, and the expiration date
- Description of the property
- This description should match the description contained in the building permit
- A statement that you are seeking payment
- This can be a simple statement, such as:
- This NOTICE is delivered to the MECHANICS LIEN AGENT, by the CLAIMANT. You are hereby notified that the CLAIMANT seeks payment for the SERVICES, which are furnished to the PROPERTY.
- This can be a simple statement, such as:
All of the relevant information should be found in the building permit. If one or more piece of information is missing, the claimant must make a reasonable inquiry to find this information from the authority that issued the building permit.
Section 43-11 Notice
As for the first notice required under §43-11, the form is required to be in writing and state the nature and character of the contract along with the probable amount of the claim. This means that the notice should contain:
- Your contact information
- Property owner information
- Prime contractor information
- Hiring party information
- Description of labor and materials
- Property description
- Probable amount of the claim
The second “post-work” notice to impose personal liability should be in a similar form as the first notice, but with an updated/correct amount of the claim stated and it should be verified by affidavit.
Filling out this notice properly is a common question, and it was a topic discussed in our Ask an Expert Center: In VA, on the 43-11 preliminary notice for commercial jobs, does it need to include the total amount due on the job or just the estimated total contract amount?
When does a Virginia preliminary notice need to be sent?
Notice to Mechanics Lien Agent (residential projects)
These types of notices are ideally sent within 30 days of the date the claimant first furnished labor or materials to the project. Or, if labor or materials were provided before the building permit is issued, then within 30 days of when the permit was issued.
Missing this deadline doesn’t kill your lien rights, but it will have an impact. But best practice is to send it as early as possible, as the liability will be limited to the money still owed to the GC (or money the GC still owes the sub) at the time the notice is received.
Section 43-11 Notice
There is no specific deadline for a Section 43-11 notice. Therefore, it can be sent at any point during the project. But, it’s most likely best to do it as early as possible. There’s no sense in postponing the notice on the off chance you forget to do so. As for the second “post-work” notice, this must be sent within 30 days of the claimant’s last day of furnishing labor or materials to the project in order to effectively hold the parties personally liable for the debt.
How a does Virginia preliminary notice need to be sent?
Both types of Virginia preliminary notices should be sent by certified mail, with return receipt requested. The notice is considered delivered when it is sent by the proper means. Be sure to hold on to that receipt, even if it states that the notice wasn’t accepted by the addressee; that is enough evidence to prove that notice was received.
Bottom line
As you’ve come to realize, preliminary notices can offer a number of benefits to subcontractors and suppliers on Virginia private projects. Particularly on 1-2 family, owner-occupied, residential projects with an appointed mechanics lien agent; because they are required. In all other cases, sending preliminary notice is optional. However, the ability to hold an owner or GC personally liable is a great way to protect yourself from non-payment. There’s no reason not to send one.
Additional resources
- Virginia Preliminary Notice Overview & FAQs
- GC Asking You Not to Send Preliminary Notice? Is That Legal?
- How to File a Virginia Mechanics Lien – Step by Step Guide
