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Home>Levelset Community>Legal Help>We (EFI) currently have a prospective project with a DEVELOPER in Manassas, VA where we are providing them Engineering Services. EFI is a manufacturer of specially fabricated items and we are a SUPPLIER to all of our customers. My question is: Are we able to file a mechanics lien on this project if something goes wrong and we need to file one? ~ Heather Smith

We (EFI) currently have a prospective project with a DEVELOPER in Manassas, VA where we are providing them Engineering Services. EFI is a manufacturer of specially fabricated items and we are a SUPPLIER to all of our customers. My question is: Are we able to file a mechanics lien on this project if something goes wrong and we need to file one? ~ Heather Smith

VirginiaRight to Lien

We (EFI) currently have a prospective project with a DEVELOPER in Manassas, VA where we are providing them Engineering Services. EFI is a manufacturer of specially fabricated items and we are a SUPPLIER to all of our customers. My question is: Are we able to file a mechanics lien on this project if something goes wrong and we need to file one? ~ Heather Smith

1 reply

May 20, 2019
That's a great question. First, when specially fabricated materials are supplied to a project and actually incorporated, but not paid for, mechanics lien rights will arise just like any other materials that were supplied to the project. So, where materials make their way to the site and are actually used, an unpaid supplier of those specialty materials will generally be entitled to lien, if necessary. Though, there does seem to be an open question in Virginia as to whether suppliers who supply other suppliers (like a wholesaler) are entitled to lien. When materials are fabricated but don't make it to the job site, or when they do make it to the job site but aren't used, then the availability of lien rights can come into question.

The Virginia Code makes no mention of materials that are specially fabricated or manufactured, so it's hard to be sure whether those materials would be treated differently than other, more standard construction materials. But, the safest assumption might be to treat those materials just as if they were like any other construction materials - and generally, lien rights won't be available unless the materials are used in the course of the improvement.

Of course, even where lien rights might not be available for some work provided, it's worth noting that there are always other options for recovery - so, even where materials are specially fabricated but not furnished or incorporated into the project, there may be an opportunity to recover outside of the mechanics lien process. Those options are discussed in these articles: (1) Can’t File a Lien? Here Are Some Other Options For Recovery; and (2) Don’t Want to File a Mechanics Lien? Here Are 5 Other Options.

For more information and background on Virginia's lien and notice rules, this resource will be valuable: Virginia Mechanics Lien and Notice Overview.
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