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Does the owner need a contractor's license to enforce a mechanic's lien on the property we did work for?

VirginiaLicenses Mechanics Lien

We did work for the owner of a property who isn't paying the bill. At the time I filed the lien using Levelset, I thought they were the contractor. It turned out they were actually the owner of the building. My first question is, does it matter that I put we were the sub and the customer was the GC on the Levelset forms when I should have put we were the contractor and the customer was the owner? My second question is does the owner need to have a contractor's license to be able to enforce the lien on the property?

1 reply

Sep 26, 2019

Virginia has separate statutory forms for mechanics liens depending on the mechanics lien claimant's role on the project. So, if a lien claimant filed a contractor as a sub, but in fact they were really a prime contractor, it's possible that using the incorrect form might impact the claim. However, the forms provided in the statute aren't mandatory - rather, they're examples of what is sufficient and templates for those looking to file a claim. Further, the templates (located at § 43-5 and § 43-8 of the VA lien statutes) are extremely similar - though there are also differences. The key difference being: On a contractor's mechanics lien, there's a certification on the lien that the lien was sent to the owner, along with the lien claimant themselves. Since that's an explicit requirement under § 43-4 of Virginia's lien laws, and since it's included in the statutory template, there's a fair chance that failure to include the certification, even by mistake, might result in a loss of rights. Ultimately, though, it's possible that a lien filed based on an incorrect role would be valid. This would seem especially compelling when a prime contractor was under the impression they were providing work as a subcontractor. However, based on the information above, it's also possible that the differences between the templates might call a lien's validity into question, too. When in doubt, if the deadline to file a lien has not yet passed, the safest way to proceed might be to refile the lien. Contractors license By and large, owners aren't required to be licensed in order for there to be lien rights on their project - even in a situation where the owner might also be performing some duties generally associated with a general contractor. Virginia does strictly require that everyone up-the-chain from a subcontractor be licensed in order to file a valid and enforceable lien. However, it seems unlikely that an owner could have their cake and eat it too by arguing no liens could be filed against their project because they, themselves, aren't licensed. However, that's not something that's cut and dry taken from statute. And, it's possible that some additional Virginia licensing complications could come into play that I'm not familiar with since I'm not a Virginia attorney. So, reaching out to a Virginia construction attorney - such as Christopher Hill, who's another Expert here - might be helpful for some clarity on that issue.

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