Virginia Lien Apportionment Law is strict

This is a guest post from our friend Christopher Hill of the Construction Law Musings blog. Christopher is a construction attorney in Virginia who has contributed to the Construction Payment Blog in the past. We follow his blog closely to keep up to date on mechanics lien law in Virginia and are honored to have him contribute here again.

As always, thanks to Scott for the kind invitation to guest post here.  I always enjoy sharing a few nuggets of Virginia mechanic’s lien wisdom here at the Mechanic’s Construction Payment Blog.

Mechanic’s liens are near and dear to Construction Law MusingsMechanic’s liens are a great weapon in the toolbox of any construction contractor in Virginia.  However, the rules for perfection of these liens are strict and failing to follow them to the letter will cause the lien to be thrown out.

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The Loudoun County, Virginia Circuit Court issued another reminder of this fact in a recent opinion.  As a bit of background, Va. Code 43-3(B) contains provisions whereby a site contractor (or other contractor that provides work and material that benefits and entire subdivision) can file a single lien memorandum and apportion the burden of that lien on a per lot basis.  In order to do so, that contractor must also file a disclosure statement at the local courthouse in order to be able to lien common areas and the lots that are subdivided and sold.  Like everything relating to the proper recording and perfection of a Virginia mechanic’s lien, this statute creates strict technical requirements that the Virginia courts will strictly enforce.

In William A Hazel, Inc v Sycolin Center the Court faced a question of agreement between a disclosure statement filed by a site contractor and the lien filed by that same subcontractor.  The Court looked at a disclosure statement filed by the Plaintiff that listed 3 lots for the subdivision and properly allocated the amounts due per the statute.  However, when filing the lien, the site contractor only listed two of the lots found in the initial disclosure statement and then divided the total by 2 (the number of lots liened, not the number in the subdivision).  The Court examined past cases regarding mechanic’s liens, apportionment and errors and then threw out the lien as having been improperly apportioned.  For more details, be sure to read the case in its entirety, it contains a great analysis.

This case is yet another example of the need to be diligent in the filing of mechanic’s liens in the Commonwealth of Virginia.  These powerful tools will be strictly construed and the assistance of an experienced Virginia construction attorney can be invaluable in the proper perfection and enforcement of them.

Thanks again to Scott for the great opportunity.