Home>Levelset Community>Legal Help>In VA, CT and WA, does a lien for materials supplied directly to the tenant for its build-out attach to the real property owned by the landlord or only the leasehold interest of the tenant?

In VA, CT and WA, does a lien for materials supplied directly to the tenant for its build-out attach to the real property owned by the landlord or only the leasehold interest of the tenant?

VirginiaRight to Lien

A tenant operating in shopping malls in VA, CT and WA failed to pay for materials ordered by the purchaser/tenant which was shipped directly to the tenant's space in the malls. Supplier does not want to overstate its lien rights or open the door to a slander of title claim by the landlord.

1 reply

Jan 16, 2019

That's a good question. In Virginia, under § 43-20, lien rights are limited when the party authorizing work is not the fee owner of the property. Specifically, it reads, "if the person who shall cause a building or structure to be erected or repaired owns less than a fee simple estate in the land, then only his interest therein shall be subject to liens created under this chapter." Thus, when a lessee contracts for work to be performed on the property they lease, it would appear that only the lessee's interest in the property (presumably, the lease) would be subject to lien. In Connecticut, § 49-33(h) limits lien rights for work authorized by a lessee (rather than a property owner). That section reads "If any person has a claim...and the claim is by virtue of an agreement with or by consent of the lessee of such real property...then the leasehold interest in such real property is subject to the payment of the claim. This subsection shall not be construed to limit any of the rights or remedies available to such person under subsection (a) of this section." While some mechanics lien claimants have agued that the last sentence of the quoted section provides them the right to file a lien against the owner's interest, Connecticut courts have resisted that notion. Finally, Washington. Washington's mechanics lien statute isn't as clear as Connecticut's or Virginia's. Still, precedent has set the standard that, when hired by a lessee, in order for a lien claimant to have a lien on the owner's interest in the property, the lessor who hired the lien claimant must have an agency relationship with the owner. In a situation where the lessor's lease with the owner requires the lessee to make improvements or repairs, that lessor will be considered the agent of the owner for purposes of establishing the right to lien against the owner's interest. This article sheds a little more light on the subject: Washington Lien Rights for Tenant Improvements.

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