VACODE

Research References.

Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 6 Mechanic’s Liens. § 6.1 et seq. Doug Rendleman.

Chapter 1. Mechanics’ and Materialmen’s Liens.

Research References.

Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 6 Mechanic’s Liens. § 6.1 et seq. Doug Rendleman.

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 97; 16 M.J. Schools, § 2.

§ 43-1. Definitions.

As used in this chapter, the term “general contractor” includes contractors, laborers, mechanics, and persons furnishing materials, who contract directly with the owner, and the term “subcontractor” includes all such contractors, laborers, mechanics, and persons furnishing materials, who do not contract with the owner but with the general contractor. As used in this chapter, the term “owner” shall not be construed to mean any person holding bare legal title under an instrument to secure a debt or indemnify a surety. As used in this chapter, the term “mechanics’ lien agent” means a person (i) designated in writing by the owner of real estate or a person authorized to act on behalf of the owner of such real estate and (ii) who consents to act, as the owner’s designee for purposes of receiving notice pursuant to § 43-4.01 . Such person shall be an attorney at law licensed to practice in the Commonwealth, a title insurance company authorized to write title insurance in the Commonwealth or one of its subsidiaries or licensed title insurance agents, or a financial institution authorized to accept deposits and to hold itself out to the public as engaged in the banking or savings institution business in the Commonwealth or a service corporation, subsidiary or affiliate of such financial institution. Any such person may perform mechanics’ lien agent services as any legal entity. Provided that nothing herein shall be construed to affect pending litigation.

History. Code 1919, § 6426; 1922, p. 867; 1932, p. 332; 1977, c. 294; 1992, cc. 779, 787; 1994, c. 382; 2010, c. 341.

Cross references.

As to meaning of the word “judgment” when used in this title, see § 8.01-426 . As to notice of possible filing of mechanics’ lien, see § 11-2.4 .

The 2010 amendments.

The 2010 amendment by c. 341 deleted “in writing” following “consents” in clause (ii) of the third sentence.

Law Review.

For survey of Virginia commercial law for the year 1970-1971, see 57 Va. L. Rev. 1527 (1971).

For survey of Virginia law on business associations for the year 1970-1971, see 57 Va. L. Rev. 1541 (1971).

For survey of Virginia commercial law for the year 1972-1973, see 59 Va. L. Rev. 1426 (1973).

For survey of Virginia commercial law for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

For note, “Constitutionality of Mechanics’ Liens Statutes,” see 34 Wash. & Lee L. Rev. 1067 (1977).

For survey on creditors’ rights in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989).

For article, “Perfection and Enforcement of A Mechanic’s Lien in Virginia: A Defense Lawyer’s Perspective,” see 25 U. Rich. L. Rev. 291 (1991).

For 2000 survey of Virginia construction law, see 34 U. Rich. L. Rev. 683 (2000).

For article surveying developments in real estate and land use law in Virginia from June 1, 2001 through June 1, 2002, see 37 U. Rich. L. Rev. 271 (2002).

For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 35 Limitation of Actions: Statutes of Limitations; Immunities; Res Judicata and Collateral Estoppel. § 35.03 Res Judicata and Collateral Estoppel. Charles E. Friend.

CASE NOTES

“General contractor” broadly defined. —

For purposes of the mechanic’s lien provisions of this title, the term “general contractor” is definitionally broader than its colloquial counterpart. West Alexandria Properties, Inc. v. First Va. Mtg. & Real Estate Inv. Trust, 221 Va. 134 , 267 S.E.2d 149, 1980 Va. LEXIS 224 (1980).

There may be more than one general contractor. —

Where several contractors contracted directly with the owner, under the statutory definition they were all general contractors. Northern Va. Sav. & Loan Ass'n v. J.B. Kendall Co., 205 Va. 136 , 135 S.E.2d 178, 1964 Va. LEXIS 155 (1964).

Privity of contract. —

A person making improvements to land is deemed a general contractor if that person is in contractual privity with the owner. West Alexandria Properties, Inc. v. First Va. Mtg. & Real Estate Inv. Trust, 221 Va. 134 , 267 S.E.2d 149, 1980 Va. LEXIS 224 (1980).

Joint venturer. —

Joint venturer could not enforce a mechanic’s lien for value of work done on co-joint venturer’s portion of land, which had been dedicated to the public, where the remaining land of the co-joint venturer had been transferred to a third party in fee simple and who was never in contractual privity with the joint venturer seeking to enforce the lien. West Alexandria Properties, Inc. v. First Va. Mtg. & Real Estate Inv. Trust, 221 Va. 134 , 267 S.E.2d 149, 1980 Va. LEXIS 224 (1980).

CIRCUIT COURT OPINIONS

Interpleader not allowed, as it would limit remedies under mechanics’ liens. —

Trial court denied interpleader plaintiffs’ motion to interplead funds, pursuant to § 8.01-364 , arising from a terminated construction contract dispute, where the amount sought to be tendered to the court was still subject to judicial determination and was not a set fund; additionally, the court noted that allowing such a motion and filing of funds would limit the remedy available to all defendants under the mechanics’ lien statutes, § 43-1 et seq. Goel v. Osage Contr., Inc., 62 Va. Cir. 335, 2003 Va. Cir. LEXIS 99 (Fairfax County July 22, 2003).

Failure to perfect mechanic’s lien. —

Subcontractor could not perfect a mechanic’s lien against a store’s interest in property because it omitted the store from the memorandum of mechanic’s lien and thus, failed to provide the store notice as owner of an interest in the property. Lin R. Rogers Elec. Contrs. Inc. v. Flynn Constr. Mgmt. Gen. Contr., Inc., 99 Va. Cir. 515, 2010 Va. Cir. LEXIS 367 (Essex County Dec. 9, 2010).

General contractor. —

Contractor that remodeled a barber shop was a general contractor because the contractor contracted with the owners and registered agents of the barber shop, which was a corporate entity, for the services rendered. Barber of Seville v. Bironco, Inc., 106 Va. Cir. 306, 2020 Va. Cir. LEXIS 466 (Fairfax County Nov. 19, 2020).

§ 43-2. Structures, materials, etc., deemed permanently annexed to freehold.

For the purpose of this chapter, a well, excavation, sidewalk, driveway, pavement, parking lot, retaining wall, curb and/or gutter, breakwater (either salt or fresh water), underground or field-constructed above-ground storage tank and connected dispensing equipment, water system, drainage structure, filtering system (including septic or waste disposal systems) or swimming pool shall be deemed a structure permanently annexed to the freehold, and all shrubbery, earth, sod, sand, gravel, brick, stone, tile, pipe or other materials, together with the reasonable rental or use value of equipment and any surveying, grading, clearing or earth moving required for the improvement of the grounds upon which such building or structure is situated shall be deemed to be materials furnished for the improvement of such building or structure and permanently annexed to the freehold.

History. Code 1919, § 6426; 1922, p. 867; 1932, p. 332; 1962, c. 152; 1968, c. 568; 1976, c. 213; 1996, c. 513.

CASE NOTES

Items subject to lien rights. —

Only those items specifically enumerated in this section are deemed a structure permanently annexed to the freehold and, therefore, subject to lien rights. Because subdivision streets are not enumerated in this section such streets are not permanently annexed to the freehold. Likewise, the roads upon which plaintiff performed its work in the instant case cannot be deemed permanently annexed to the freehold under this section because roads are not specifically enumerated in this statute. Dominion Trust Co. v. Kenbridge Constr. Co., 248 Va. 393 , 448 S.E.2d 659, 1994 Va. LEXIS 129 (1994).

Items furnished to the hotel were not for the improvement of the building within the meaning of this section and the bankruptcy court erred by focusing solely on the removability of materials, as opposed to their connection to the encumbered property. Some greater connection to the building or structure was necessary in order to sustain a mechanics’ lien. Summit Cmty. Bank v. Blue Ridge Shadows Hotel & Conf. Ctr., 428 Bankr. 231, 2010 U.S. Dist. LEXIS 32157 (W.D. Va. 2010).

No contractor’s lien on land not worked. —

The liberalizing provisions of this section have never extended a contractor’s lien rights to land upon which he did no work. Rosser v. Cole, 237 Va. 572 , 379 S.E.2d 323, 5 Va. Law Rep. 2304, 1989 Va. LEXIS 72 (1989).

CIRCUIT COURT OPINIONS

Proof that work description was inaccurate. —

In a case in which a real estate company filed a motion for the release of a memorandum of mechanic’s lien filed by a contractor and the contractor replied that the description of work was inaccurate in that it omitted surveying done in the course of preparing the exhibits and, that in their view, they were entitled to cure the inaccuracy under § 43-15 because their memorandum substantially complied with the statutory requirements of § 43-4 , the contractor was entitled to present proof that the description of work was an inaccuracy within the meaning of § 43-15 , and to establish whether the work fell within the class of work entitled to the protection of a mechanic’s lien under the statute. BP Realty, LP v. Urban Eng'g & Assocs., Inc., 79 Va. Cir. 176, 2009 Va. Cir. LEXIS 48 (Fairfax County Aug. 4, 2009).

§ 43-3. Lien for work done and materials furnished; waiver of right to file or enforce lien.

History. Code 1919, § 6426; 1922, p. 867; 1932, p. 332; 1968, c. 568; 1979, cc. 360, 542; 1980, c. 449; 1992, cc. 72, 779, 787; 2002, c. 273; 2004, c. 240; 2010, c. 343; 2012, c. 523; 2013, c. 293; 2015, c. 748; 2018, cc. 79, 325.

Cross references.

As to priorities between mechanics’ liens and liens of employees, suppliers, etc., see note to § 43-24 .

As to liens on franchises and property of transportation, mining and manufacturing companies, see §§ 43-24 through 43-26 .

Editor’s note.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted “§ 55.1-1900 or under the Horizontal Property Act (§ 55.1-2000 et seq.)” for “§ 55-79.41 or under the Horizontal Property Act (§§ 55-79.1 through 55-79.38)” twice, “subsection D of § 55.1-1964 ” for “subsection D of § 55-79.83” twice and “subsection B of § 55.1-1908 ” for “subsection B of § 55-79.46.”

The 2002 amendments.

The 2002 amendment by c. 273, in subsection A, inserted “including the reasonable rental or use value of equipment” near the beginning of the first sentence of the first paragraph, and in the second paragraph, substituted “subsection D of § 55-79.83” for “§ 55-79.83 D” in the third sentence, and substituted “subsection B of § 55-79.46” for “§ 55-79.46 B” in the fourth sentence; and in subsection B, substituted “subsection D of § 55-79.83” for “§ 55-79.83 D” in the first sentence of the first paragraph, and deleted “hereof” at the end of the second paragraph.

The 2004 amendments.

The 2004 amendment by c. 240, in subsection A, substituted “$50” for “fifty dollars” and added “subject to the provisions of § 43-20 ” at the end of the first sentence.

The 2010 amendments.

The 2010 amendment by c. 343 substituted “$150” for “$50” in the first sentence of subsection A.

The 2012 amendments.

The 2012 amendment by c. 523 rewrote subsections B and C.

The 2013 amendments.

The 2013 amendment by c. 293 added subsection D.

The 2015 amendments.

The 2015 amendment by c. 748 inserted the exception at the end of the first sentence and added the second sentence in subsection C.

The 2018 amendments.

The 2018 amendments by cc. 79 and 325 are nearly identical, and in the first paragraph of subsection B, inserted “that” following “provided, however”; and in subsection C, inserted “general contractor” in the first sentence and “general contractor’s” in the second sentence. Subsection B is set out in the form above at the direction of the Virginia Code Commission.

Law Review.

For comment on mechanics’ liens in Virginia, see 17 Wash. & Lee L. Rev. 307 (1960).

For survey of Virginia commercial law for the year 1974-1975, see 61 Va. L. Rev. 1668 (1975).

For survey of Virginia commercial law for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

For comment discussing the application of the blanket lien with respect to multi-unit development in Virginia, see 13 U. Rich. L. Rev. 637 (1979).

For comment, “United States v. Kimbell Foods, Inc.: A Problem or Solution in Resolving Lien Priority Disputes?,” see 36 Wash. & Lee L. Rev. 1203 (1979).

For survey of Virginia commercial law for the year 1978-1979, see 66 Va. L. Rev. 217 (1980).

For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

As to waiver of liens, see 22 U. Rich. L. Rev. 517 (1988).

For survey on construction law in Virginia for 1989, see 23 U. Rich. L. Rev. 541 (1989).

For article, “Perfection and Enforcement of A Mechanic’s Lien in Virginia: A Defense Lawyer’s Perspective,” see 25 U. Rich. L. Rev. 291 (1991).

For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

For annual survey article, “Real Estate Law,” see 41 U. Rich. L. Rev. 257 (2006).

For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

CASE NOTES

Analysis

I. General Consideration.
II. Property Subject to Lien.
III. Estate or Interest Subject to Lien.
IV. Who May Subject Property to Lien.
V. Requisites of Lien.
IV. Release and Merger.

I.General Consideration.

This chapter is not contrary to the Fourteenth Amendment to the United States Constitution. Virginia Dev. Co. v. Crozer Iron Co., 90 Va. 126 , 17 S.E. 806 , 1893 Va. LEXIS 21 (1893); Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579 , 44 S.E. 760 , 1903 Va. LEXIS 62 (1903).

This section does not violate the due process clause of the Fourteenth Amendment. In re Thomas A. Cary, Inc., 412 F. Supp. 667, 1976 U.S. Dist. LEXIS 15204 (E.D. Va. 1976), aff'd, 562 F.2d 47 (4th Cir. 1977), aff'd, 562 F.2d 48 (4th Cir. 1977).

This and the sections following relate to the executorial enforcement of liens for work done and materials furnished in the construction, repair, or improvement of any building or structure permanently annexed to the freehold, whether performed by general contractors or subcontractors. Boston Blower Co. v. Carman Lumber Co., 94 Va. 94 , 26 S.E. 390 , 1896 Va. LEXIS 147 (1896).

A lien created by this section is one in derogation of the common law. American Std. Homes Corp. v. Reinecke, 245 Va. 113 , 425 S.E.2d 515, 9 Va. Law Rep. 776, 1993 Va. LEXIS 5 (1993).

The mechanics’ lien is a creature of statute, with foundation in a contract, with which it must correspond. Sergeant v. Denby, 87 Va. 206 , 12 S.E. 402 , 1890 Va. LEXIS 110 (1890) (see N.J. Steigleder & Son v. Allen, 113 Va. 686 , 75 S.E. 191 (1912); Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801 (1941)).

The very existence of a mechanics’ lien on land, as well as the jurisdiction of the court to enforce it, depends upon statute and not upon equitable or ethical rules, so that neither the conscience of the chancellor nor the length of his foot can supplement the statute and vest the court with any jurisdiction except that which is based upon the provisions of this chapter fairly construed. Feuchtenberger v. Williamson, Carroll & Saunders, 137 Va. 578 , 120 S.E. 257 , 1923 Va. LEXIS 181 (1923) (see Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801 (1941)).

Mechanic’s lien is a statutory lien for bankruptcy purposes. —

The law of Virginia and the bankruptcy code, given their plain meaning and considered together, make clear that a mechanics’ lien is properly considered to be a statutory lien so that it falls within the exception from a bankruptcy trustee’s power to avoid preferences. Concrete Structures, Inc. v. Tidewater Crane and Rigging Co., 261 Bankr. 627, 2001 U.S. Dist. LEXIS 3675 (E.D. Va. 2001).

A mechanic’s lien must be based on a contract, either oral or written, with which it must conform: although the lien is a creature of the statute, it must have its foundation in a contract. Hence it must correspond with the contract, as has been decided by other courts in analogous cases upon statutes similar to ours. United States v. 5.382 Acres, 871 F. Supp. 880, 1994 U.S. Dist. LEXIS 18388 (W.D. Va. 1994), aff'd, United States v. Fisher, 61 F.3d 901, 1995 U.S. App. LEXIS 26502 (4th Cir. 1995).

Though it is analogous to common-law vendor’s lien. —

The lien is created by performing labor on, or furnishing materials used for the construction of, a building or structure. It is analogous to the common-law vendor’s lien, binding the building and the enhanced value of the freehold created by its construction. Kinnier Co. v. Cofer, 13 Va. L. Reg. 238 (1927).

Policy. —

In enacting the mechanics’ liens statute, Virginia has enunciated its policy consideration that materialmen and suppliers should be paid or have the recourse of lodging a lien against the property. In re Thomas A. Cary, Inc., 412 F. Supp. 667, 1976 U.S. Dist. LEXIS 15204 (E.D. Va. 1976), aff'd, 562 F.2d 47 (4th Cir. 1977), aff'd, 562 F.2d 48 (4th Cir. 1977).

Intent of section. —

This section, authorizing a lien upon a building or structure and the land therewith necessary for use and enjoyment of the premises for labor performed and material furnished in construction, is intended to give those who have enhanced the value of a building the security of a lien on it to the extent they have added value but not to give a lien upon property not benefitted by labor or materials. This policy becomes particularly important when interests of other claimants are impinged upon by a joint lien. United Masonry, Inc. v. Jefferson Mews, Inc., 218 Va. 360 , 237 S.E.2d 171, 1977 Va. LEXIS 199 (1977).

The mechanics’ lien is designed to give security to those adding value to property, by a pledge of the interest of the employer. Merchants & Mechanics Sav. Bank v. Dashiell, 66 Va. (25 Gratt.) 616, 1874 Va. LEXIS 83 (1874); Bristol Iron & Steel Co. v. Thomas, 93 Va. 396 , 25 S.E. 110 , 1896 Va. LEXIS 87 (1896).

The object of the law is to give to those who, by their labor and material, have enhanced the value of a building or structure the security of a lien thereon to the extent that they have added to its value, but not to give a lien upon property not benefitted. Gilman v. Ryan, 95 Va. 494 , 28 S.E. 875 , 1898 Va. LEXIS 5 (1898).

The essence of the mechanics’ lien laws is to protect materialmen when they have provided supplies and have not been compensated. In re Thomas A. Cary, Inc., 412 F. Supp. 667, 1976 U.S. Dist. LEXIS 15204 (E.D. Va. 1976), aff'd, 562 F.2d 47 (4th Cir. 1977), aff'd, 562 F.2d 48 (4th Cir. 1977).

It is not the contract for erecting a building which creates the lien under this section, but use of the materials furnished and expended by the contractor. Weaver v. Harland Corp., 176 Va. 224 , 10 S.E.2d 547, 1940 Va. LEXIS 249 (1940).

Construction of chapter. —

Although there is a diversity of opinion as to whether mechanics’ lien statutes should receive a strict or liberal construction, the correct rule of construction as to this chapter is that there must be a substantial compliance with the requirement of that portion of the chapter which relates to the creation of the lien, but that the provisions with respect to its enforcement should be liberally construed. H.N. Francis & Co. v. Hotel Rueger, Inc., 125 Va. 106 , 99 S.E. 690 , 1919 Va. LEXIS 12 (1919) (see Clement v. Adams Bros.-Paynes Co., 113 Va. 546 , 75 S.E. 294 (1912)).

The remedial portions of this chapter, which provide for enforcing the mechanics’ lien after it is perfected, should be liberally construed, but the other portions, upon which the right to the existence of the lien depends, being in derogation of the common law, should be strictly construed. This rule of construction is not abrogated by § 43-15 . Clement v. Adams Bros.-Paynes Co., 113 Va. 546 , 75 S.E. 294 (1912) (see also Shackleford v. Beck, 80 Va. 573 (1885); Virginia Dev. Co. v. Crozer Iron Co., 90 Va. 126 , 17 S.E. 806 (1893), aff’d on rehearing, 19 S.E. 782 (1894); Bristol Iron & Steel Co. v. Thomas, 93 Va. 396 , 25 S.E. 110 (1896)).

Mechanics’ lien and lien under § 43-24 distinguished. —

The difference between a mechanics’ lien and a lien under § 43-24 is that the mechanics’ lien under this section is put upon the building or structure and so much of the land therewith as shall be necessary for the convenient use and enjoyment thereof, while § 43-24 puts a lien upon all the real and personal property of the company which is used in operating the same. The conflict of these liens, therefore, would only be as to such buildings or structures and lands as are used in operating the company. Building Supplies Corp. v. Willcox, 284 F. 113, 1922 U.S. App. LEXIS 2348 (4th Cir. 1922).

Interest allowed in excess of legal rate on debts underlying liens. —

Materialman’s right to a mechanic’s lien included interest on the unpaid cost of material furnished at a rate fixed in its contract in excess of the legal rate. American Std. Homes Corp. v. Reinecke, 245 Va. 113 , 425 S.E.2d 515, 9 Va. Law Rep. 776, 1993 Va. LEXIS 5 (1993).

Chancellor did not err in excluding attorney’s fees as an element of the liens enforced by the final decree. The General Assembly expressly approved inclusion of interest as an element of the claim in the perfection and enforcement of a mechanic’s lien. The legislature was at liberty to do, but did not do, the same for attorney’s fees. American Std. Homes Corp. v. Reinecke, 245 Va. 113 , 425 S.E.2d 515, 9 Va. Law Rep. 776, 1993 Va. LEXIS 5 (1993).

Joinder of all parties with interest in subject matter. —

Where actions are filed by subcontractors against non-debtor owners and where general contractor files a bankruptcy petition, an owner might be prejudiced if the determination of the amount owing to the general contractor, that must be made in order to enforce a subcontractor’s mechanic’s lien, can be relitigated in a later proceeding; thus a general contractor would be a party who should be joined if feasible, and perhaps one in whose absence the case should be dismissed; although an action pursuant to this section is equitable and former Rule 3:9A [see now Rule 3:12] would not be directly applicable, it appears that the equity practice in Virginia is to require the joinder of all parties with an interest in the subject matter of the enforcement action. Middleton & Dugger Plumbing & Heating v. Richardson Bldrs., Inc., 123 Bankr. 736, 1990 Bankr. LEXIS 2871 (Bankr. W.D. Va. 1990).

II.Property Subject to Lien.

Property exempt from sale under execution. —

Property which is exempt from seizure and sale under execution on grounds of public necessity must for the same reason be equally exempt from the operation of the mechanics’ lien law, unless it appears by the law itself that the contrary was intended. And for this to be the case something more must appear than the ordinary provisions that the claim is to be a lien against a particular class of property enforceable as judgment rendered in other civil actions. These provisions do not apply to public buildings erected by states, cities and counties for public uses, unless the statute expressly so provides. Manly Mfg. Co. v. Broaddus, 94 Va. 547 , 27 S.E. 438 , 1897 Va. LEXIS 106 (1897); Phillips v. Rector & Visitors of Univ. of Va., 97 Va. 472 , 34 S.E. 66 , 1899 Va. LEXIS 62 (1899) (see also Legg v. County School Bd., 157 Va. 295 , 160 S.E. 60 (1931)).

The mechanics’ lien statutes have no application to contracts with the Commonwealth, or political subdivisions thereof, for the construction of public improvements, and do not give a subcontractor any lien on sums due by the Commonwealth or a political subdivision thereof to the contractor for the construction of public improvements. Bowers v. Town of Martinsville, 156 Va. 497 , 159 S.E. 196 , 1931 Va. LEXIS 208 (1931).

A building owned by a municipal corporation is not subject to a mechanics’ lien. London Bros. v. National Exch. Bank, 121 Va. 460 , 93 S.E. 699 , 1917 Va. LEXIS 50 (1917).

A board of supervisors of a county cannot give a lien upon a public building. Manly Mfg. Co. v. Broaddus, 94 Va. 547 , 27 S.E. 438 , 1897 Va. LEXIS 106 (1897).

Authority to issue bonds does not authorize liens. Phillips v. Rector & Visitors of Univ. of Va., 97 Va. 472 , 34 S.E. 66 , 1899 Va. LEXIS 62 (1899).

Church property is included. —

There is no reason arising out of the nature of church property in general for excepting it from the general terms of this section. That a church is embraced in the language “any building” is not open to doubt. Cain v. Rea, 159 Va. 446 , 166 S.E. 478 , 1932 Va. LEXIS 210 (1932).

One who built roads or streets in a subdivision had no lien rights upon the subdivision lots, or the buildings thereon, until the General Assembly enacted subsection (b) and this is the first and only example in the mechanic’s lien statutes of a provision for an extraterritorial lien, and it is carefully conditioned to minimize danger to purchasers without notice and other innocent third parties. Rosser v. Cole, 237 Va. 572 , 379 S.E.2d 323, 5 Va. Law Rep. 2304, 1989 Va. LEXIS 72 (1989).

By its nature, a joint lien confesses an inability to attribute the materials with particularity. In re Thomas A. Cary, Inc., 412 F. Supp. 667, 1976 U.S. Dist. LEXIS 15204 (E.D. Va. 1976), aff'd, 562 F.2d 47 (4th Cir. 1977), aff'd, 562 F.2d 48 (4th Cir. 1977).

If a joint lien is filed, the premise underlying the filing is that the materials may not be segregated and allocated to a specific lot or structure. In re Thomas A. Cary, Inc., 412 F. Supp. 667, 1976 U.S. Dist. LEXIS 15204 (E.D. Va. 1976), aff'd, 562 F.2d 47 (4th Cir. 1977), aff'd, 562 F.2d 48 (4th Cir. 1977).

Lien on items not permanently annexed. —

Lien filed by construction corporation was not over-inclusive. —

Where development group argued that lien was over-inclusive because its property was not a single parcel, but rather two separate non-contiguous parcels, and that construction corporation could have described the property subject to its lien, the memorandum of mechanic’s lien filed by construction corporation was not over-inclusive. A lienor, such as construction corporation, was entitled to rely upon the land records. Blue Ridge Constr. Corp. v. Stafford Dev. Group, 244 Va. 361 , 421 S.E.2d 199, 9 Va. Law Rep. 301, 1992 Va. LEXIS 85 (1992).

Contract for two houses may create joint lien. —

Where the owner bargained with the general contractor to build two houses on two distinct lots, for an entire price, and the contractor bargained with the subcontractor to furnish materials for the entire work, and the work was done and the materials furnished accordingly, the lien of the general contractor and of the subcontractor was joint on both houses. Sergeant v. Denby, 87 Va. 206 , 12 S.E. 402 , 1890 Va. LEXIS 110 (1890).

Except where interests of third persons are involved. —

Where the interests of other lien creditors would be prejudiced thereby, a lien for the entire amount due for work done on, or materials furnished for, several buildings or lots cannot attach to, or be enforced against, part of the buildings or lots, and where it is sought to enforce the lien on less than the whole number of buildings or lots, each building is subject to the lien only to the extent of what was done or furnished therefor, and each lot only to the extent of what was done or furnished for the building or improvement thereon. The lien is properly confined to the building upon which the work was done, although the original contract embraced other buildings. Weaver v. Harland Corp., 176 Va. 224 , 10 S.E.2d 547, 1940 Va. LEXIS 249 (1940).

Lien does not attach to adjoining lot. —

Where a supplier provided materials for construction of a home which sat on one of two adjoining lots owned by the same homeowners, only the lot occupied by the home was necessary for the convenient use and enjoyment of the home, and thus the supplier’s mechanics’ lien did not extend to the adjoining unimproved lot. Kiser v. Russell County, 344 Bankr. 432, 2004 Bankr. LEXIS 2459 (Bankr. W.D. Va. 2004).

Joint lien cannot attach to separate buildings under separate contracts. —

Where separate buildings are constructed under separate contracts no lien can attach to all the buildings. Gilman v. Ryan, 95 Va. 494 , 28 S.E. 875 , 1898 Va. LEXIS 5 (1898).

Or where there is a separate estimate for each building. Gilman v. Ryan, 95 Va. 494 , 28 S.E. 875 , 1898 Va. LEXIS 5 (1898).

Where several buildings are under construction, it is sufficient if lienors keep accounts from which it can be determined what labor and material is supplied to each house on which a lien is claimed. And where they receive payment without direction as to application, they are free to apply such payment as they wish, failing which the law will apply the payment to the earliest item of debt. Northern Va. Sav. & Loan Ass'n v. J.B. Kendall Co., 205 Va. 136 , 135 S.E.2d 178, 1964 Va. LEXIS 155 (1964).

The nature of the development of a subdivision provides impediments to the use of a single lien. In re Thomas A. Cary, Inc., 412 F. Supp. 667, 1976 U.S. Dist. LEXIS 15204 (E.D. Va. 1976), aff'd, 562 F.2d 47 (4th Cir. 1977), aff'd, 562 F.2d 48 (4th Cir. 1977).

Joint lien for materials supplied in bulk to subdivisions. —

Where subcontractors supply material in bulk to a subdivision and the nature thereof precludes allocating the material to a particular lot or building, filing of a joint lien is appropriate on the basis of policy considerations and where no subsequent release of the lien on a particular lot or building occurs. In re Thomas A. Cary, Inc., 412 F. Supp. 667, 1976 U.S. Dist. LEXIS 15204 (E.D. Va. 1976), aff'd, 562 F.2d 47 (4th Cir. 1977), aff'd, 562 F.2d 48 (4th Cir. 1977).

Memorandum of joint lien claiming unapportioned amount. —

Where work was done and materials furnished for a condominium under two separate and distinct contracts which added disproportionate values to the properties liened, a memorandum which failed to apportion the amounts due between the several properties benefitted was defective and the lien void. United Masonry, Inc. v. Jefferson Mews, Inc., 218 Va. 360 , 237 S.E.2d 171, 1977 Va. LEXIS 199 (1977).

A memorandum of lien failed to comply with this section when an unapportioned amount was claimed upon all units of a condominium, whereas one contract was for work on 132 units and another was for work on common element of entire 264-unit project, and the memorandum did not seek to secure only a claim to extent plaintiff had added value but instead attempted to lien property not benefitted by work. United Masonry, Inc. v. Jefferson Mews, Inc., 218 Va. 360 , 237 S.E.2d 171, 1977 Va. LEXIS 199 (1977).

Attachment of blanket lien where condominium units unbuilt. —

While a blanket mechanic’s lien recorded when 132 units of a condominium were built and 132 units remained unbuilt could not be enforced against the unbuilt units, the joint lien did attach to the land on which these units would stand and directly affected the whole project. United Masonry, Inc. v. Jefferson Mews, Inc., 218 Va. 360 , 237 S.E.2d 171, 1977 Va. LEXIS 199 (1977).

Lien may attach to severable machinery and apparatus. —

All machinery and apparatus of a permanent character and essential to the purposes of the building, although severable without lasting injury to it or the building, may be subjected to a valid mechanics’ lien. Haskins Wood Vulcanizing Co. v. Cleveland Ship-Building Co., 94 Va. 439 , 26 S.E. 878 , 1897 Va. LEXIS 94 (1897).

And machinery may be subjected without subjecting the buildings where it is located. Haskins Wood Vulcanizing Co. v. Cleveland Ship-Building Co., 94 Va. 439 , 26 S.E. 878 , 1897 Va. LEXIS 94 (1897).

Structure of permanent character. —

The requirements of this section had been complied with, and the structure was of a permanent character within the meaning of this section. Haskins Wood Vulcanizing Co. v. Cleveland Ship-Building Co., 94 Va. 439 , 26 S.E. 878 , 1897 Va. LEXIS 94 (1897).

Entire lot in town considered necessary for convenient use and enjoyment of building. Pairo v. Bethell, 75 Va. 825 , 1881 Va. LEXIS 60 (1881).

The lien on a deed of trust recorded before land is improved is a first lien on the land and a lien on the improvements subordinate to a mechanic’s lien; the mechanic’s lien is a first lien on the improvements and a subordinate lien on so much of the land as is necessary for the use and enjoyment of the improvements. Walt Robbins, Inc. v. Damon Corp., 232 Va. 43 , 348 S.E.2d 223, 3 Va. Law Rep. 490, 1986 Va. LEXIS 225 (1986).

Because the claimant did no work on any part of the lots, his lien rights would not extend to them under the provisions of subsection (a) unless his rights are extended by other provisions of law. Rosser v. Cole, 237 Va. 572 , 379 S.E.2d 323, 5 Va. Law Rep. 2304, 1989 Va. LEXIS 72 (1989).

Removal of cabinets irrelevant. —

Where the seller furnished materials for building project and the cabinets were delivered, accepted, installed, and added value to the structure, the fact that the cabinets were removed before the memorandum was filed was irrelevant. The legislature could not have intended that a supplier’s mechanic lien may be avoided simply by removing from the building the materials furnished and incorporated in it. Moore & Moore Gen. Contractors v. Basepoint, Inc., 253 Va. 304 , 485 S.E.2d 131, 1997 Va. LEXIS 49 (1997).

III.Estate or Interest Subject to Lien.

This section is to be read with § 43-21 . —

While this section gives to a materialman who perfects his lien within the prescribed time and in the proper manner a lien upon the building “and so much land therewith as shall be necessary for the convenient use and enjoyment thereof,” it must be read in connection with § 43-21 , which deals with conflicting liens on the land affected. Federal Land Bank v. Clinchfield Lumber & Supply Co., 171 Va. 118 , 198 S.E. 437 , 1938 Va. LEXIS 263 (1938) (see Feuchtenberger v. Williamson, Carroll & Saunders, 137 Va. 578 , 120 S.E. 257 (1923)).

Interest of person not ordering work is unaffected. —

If this section could be construed as authorizing a lien on the interest of a person not ordering the work to be done, it would seem that the provision would be unconstitutional as taking private property without the owner’s consent. Feuchtenberger v. Williamson, Carroll & Saunders, 137 Va. 578 , 120 S.E. 257 , 1923 Va. LEXIS 181 (1923).

Mere knowledge of owner is insufficient to work estoppel. —

While the owner of land may by conduct estop himself from denying that a building contractor who has erected a structure on the land has a lien thereon, yet the owner’s mere knowledge that the contractor was building on the land by direction of the owner’s vendee under a contract to convey is not alone sufficient to establish such an estoppel. Feuchtenberger v. Williamson, Carroll & Saunders, 137 Va. 578 , 120 S.E. 257 , 1923 Va. LEXIS 181 (1923).

An equitable interest or estate in land is subject to a mechanics’ lien, unless the statute expressly excludes such a construction. Feuchtenberger v. Williamson, Carroll & Saunders, 137 Va. 578 , 120 S.E. 257 , 1923 Va. LEXIS 181 (1923).

A mechanics’ lien may be perfected on an equitable as well as on a legal estate. Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801, 1941 Va. LEXIS 194 (1941); Blanton v. Owen, 203 Va. 73 , 122 S.E.2d 650, 1961 Va. LEXIS 223 (1961).

But lien survives or perishes with estate. —

When mechanics’ liens are entered against an equitable estate, their value depends upon that particular estate, and they survive or perish with it. Feuchtenberger v. Williamson, Carroll & Saunders, 137 Va. 578 , 120 S.E. 257 , 1923 Va. LEXIS 181 (1923).

IV.Who May Subject Property to Lien.

Section applies to all persons performing labor. —

The language of this section is general in its terms and embraces all persons who perform “any labor” in the construction of a building. Cain v. Rea, 159 Va. 446 , 166 S.E. 478 , 1932 Va. LEXIS 210 (1932).

An architect is embraced in the protecting provisions of this section. Cain v. Rea, 159 Va. 446 , 166 S.E. 478 , 1932 Va. LEXIS 210 (1932).

As between the owner and subcontractor it is not necessary to have the owner’s consent. By the building contract the general contractor becomes, to a certain extent, the agent of the owner to procure the necessary labor and material for the construction of the building and use the same therein. Kinnier Co. v. Cofer, 13 Va. L. Reg. 238 (1927).

Optional remedies of subcontractor. —

The subcontractor, under the provisions of § 43-18 , may rely on the general contractor’s lien or, under the provisions of this section and §§ 43-4 and 43-7 , he may file and undertake to enforce his own independent lien. VNB Mtg. Corp. v. Lone Star Indus., Inc., 215 Va. 366 , 209 S.E.2d 909, 1974 Va. LEXIS 293 (1974).

Subcontractors and materialmen are not deprived of their independent liens unless they either expressly waived their lien rights or expressly accepted, or by clear implication, agreed to be bound by the general contractor’s stipulation in the general contract against liens. VNB Mtg. Corp. v. Lone Star Indus., Inc., 215 Va. 366 , 209 S.E.2d 909, 1974 Va. LEXIS 293 (1974).

A joint venturer may be a general contractor within the compass of the mechanic’s lien laws. West Alexandria Properties, Inc. v. First Va. Mtg. & Real Estate Inv. Trust, 221 Va. 134 , 267 S.E.2d 149, 1980 Va. LEXIS 224 (1980).

V.Requisites of Lien.

Lien is inchoate but may be perfected. —

The liens created by this section, while inchoate, are potential liens, which may be perfected within the time and in the manner provided by the succeeding sections of this chapter. DeWitt v. Coffey, 150 Va. 365 , 143 S.E. 710 , 1928 Va. LEXIS 319 (1928).

All the statutory provisions for mechanics’ liens are indispensable, and the omission of any one of them is fatal. Coleman v. Pearman, 159 Va. 72 , 165 S.E. 371 , 1932 Va. LEXIS 175 (1932).

The terms of the statute must be met before its benefits can be enjoyed. Coleman v. Pearman, 159 Va. 72 , 165 S.E. 371 , 1932 Va. LEXIS 175 (1932).

Knowledge of purchaser or lienor is insufficient. —

Knowledge by a purchaser or lienor of the construction of the building cannot take the place of the statutory requirements. Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801, 1941 Va. LEXIS 194 (1941).

Contract may be written or oral. —

Merchants & Mechanics Sav. Bank v. Dashiell, 66 Va. (25 Gratt.) 616, 1874 Va. LEXIS 83 (1874).

Blanket lien filed upon a building was invalid and unenforceable because the supplier failed to apportion in the lien memorandum the amount of its claim for the work and materials furnished by it on each of 10 lots described in the memorandum; where there was a series of individual but related transactions reflected in the invoices, delivery tickets, and work orders, and where there were documents which could be identified with charges for individual units, those charges should have been aggregated for the filing of memoranda of lien of specific units. Addington-Beaman Lumber Co. v. Lincoln Sav. & Loan Ass'n, 241 Va. 436 , 403 S.E.2d 688, 7 Va. Law Rep. 2270, 1991 Va. LEXIS 59 (1991).

Mechanic’s lien held invalid. —

Because the contractor’s memorandum of mechanic’s lien failed to correspond to his contract, failed to describe the land and improvements upon which his lien rights existed, and purported to cover property to which his lien rights did not extend, it was invalid. Rosser v. Cole, 237 Va. 572 , 379 S.E.2d 323, 5 Va. Law Rep. 2304, 1989 Va. LEXIS 72 (1989).

IV.Release and Merger.

Releases are the fatal defect to a claim that the materials may not be attributed to a specific property. In re Thomas A. Cary, Inc., 412 F. Supp. 667, 1976 U.S. Dist. LEXIS 15204 (E.D. Va. 1976), aff'd, 562 F.2d 47 (4th Cir. 1977), aff'd, 562 F.2d 48 (4th Cir. 1977).

Release of part of property does not destroy lien as to remainder. —

The release of a mechanics’ lien as to part of the property covered thereby does not destroy the lien on the rest of the property; but where one building is released, an item for work or materials thereon cannot be included in a lien on the remaining buildings. Weaver v. Harland Corp., 176 Va. 224 , 10 S.E.2d 547, 1940 Va. LEXIS 249 (1940).

Unless interests of other lien creditors are prejudiced. —

The release of a portion of the properties embraced by the lien may preclude its successful assertion against the remainder. This is only true where the interest of other lien creditors are affected; it would not be so in the case of the owner and the lienor. If it were not so the mechanics’ lien lienors could so shift their liens as to burden unduly some of the lien subjects and to relieve others, to the extent of imperiling the interests of other lien creditors, which would not be consonant with the intent and spirit of this chapter and would be offensive to good conscience and equity. Weaver v. Harland Corp., 176 Va. 224 , 10 S.E.2d 547, 1940 Va. LEXIS 249 (1940).

Where lienor failed to perfect the lien upon one of the lots of a subdivision he sought to encumber, and where the chancellor released the lien as to that lot, this shifted the full burden of the lienor’s claim to the remaining lots. But, when such a shift in the burden occurs, the lien is enforceable only when there were no third persons whose interests were injuriously affected by the shift, and here the secured creditor under deed of trust had a valuable interest in the lots; thus, the chancellor erred in overruling the creditor’s demurrer to the lienor’s bill of complaint to enforce the lien. United Va. Mtg. Corp. v. Haines Paving Co., 221 Va. 1047 , 277 S.E.2d 187, 1981 Va. LEXIS 248 (1981).

Acceptance of deed of trust may be merger. —

The acceptance of a deed of trust on the property covered by a mechanics’ lien, to secure the amount due, is a merger of the lien. Wroten v. Armat, 72 Va. (31 Gratt.) 228, 1879 Va. LEXIS 1 (1879).

Waiver may be express or implied. —

A waiver of a mechanic’s lien must be express or, if it is implied, it must be established by clear and convincing evidence. First Am. Bank v. J.S.C. Concrete Constr., Inc., 259 Va. 60 , 523 S.E.2d 496, 2000 Va. LEXIS 20 (2000).

Agreement to waive lien must be supported by consideration. —

Although a person entitled to a mechanic’s lien may waive that right in whole or part, the general rule is that an agreement to waive or release a mechanic’s lien must be supported by consideration to be valid and binding. United Masonry, Inc. v. Riggs Nat'l Bank, 233 Va. 476 , 357 S.E.2d 509, 3 Va. Law Rep. 2739, 1987 Va. LEXIS 216 (1987).

Sufficient consideration to waive or release a mechanic’s lien exists if the promisee is induced by the waiver to do something that he is not legally bound to do or refrains from doing anything he has a legal right to do, or if the promisee acts in reliance upon the waiver to his detriment. United Masonry, Inc. v. Riggs Nat'l Bank, 233 Va. 476 , 357 S.E.2d 509, 3 Va. Law Rep. 2739, 1987 Va. LEXIS 216 (1987).

The cash payments that the contractor received, coupled with the inducement to the construction lender and title insurance company to continue construction advances, constituted sufficient consideration for the waiver of all lien rights acquired for work and materials furnished prior to a specified date. United Masonry, Inc. v. Riggs Nat'l Bank, 233 Va. 476 , 357 S.E.2d 509, 3 Va. Law Rep. 2739, 1987 Va. LEXIS 216 (1987).

CIRCUIT COURT OPINIONS

Lien against condominium association where some units are released. —

Subcontractors’ liens, which were directed toward an association of condominium owners, were valid despite the fact that the liens included some 40 units that were considered public property and owned by the county because the 940 unreleased unit owners did not suffer a shift in the lien burden from the 40 released units; instead, the percentage of indebtedness had already been apportioned, and it remained apportioned in the same amount. The lien was not invalidated — rather, it merely could not be enforced against the units owned by the county. Belle View Condos. v. Drytech, Inc., 65 Va. Cir. 169, 2004 Va. Cir. LEXIS 148 (Fairfax County June 24, 2004).

Disclosure statement. —

Defendant lot owners’ demurrer to intervenor’s cross-bill on the grounds that the intervenor’s cross-bill failed to comply with the requirements for a lien disclosure statement set forth in subsection B had to be denied, as the disclosure statement on its face met the requirements of that statute, even though the intervenor’s cross-bill allegedly contained an error about the date the intervenor contracted to install the improvements in the subdivision that were the subject of its lien. Burton & Robinson, Inc. v. Harmon at Oakton, L.C., 56 Va. Cir. 1, 2001 Va. Cir. LEXIS 164 (Fairfax County Jan. 5, 2001).

Detrimental reliance on subordination agreement. —

Detrimental reliance may have served as the basis for consideration in the case of a lien waiver; a bank’s claim was based upon allegations of detrimental reliance upon a subordination agreement under seal, which stated a cause of action sufficient to overcome a demurrer filed by a corporation. Cardinal Bank, N.A. v. Britt Constr., Inc., 68 Va. Cir. 520, 2004 Va. Cir. LEXIS 368 (Loudoun County Dec. 7, 2004).

Mechanic’s lien held invalid. —

In a case in which, pursuant to § 43-17.1 , a construction company sought to invalidate a mechanics’ lien filed by a general contractor, since the parties agreed that no materials furnished by the contractor were incorporated into the burdened property, or were ever even present at the building site, the “furnishing materials” clause of § 43-3 could not be a basis for the mechanics’ lien. Dallan Constr., Inc. v. Super Structures Gen. Contrs., Inc., 79 Va. Cir. 11, 2009 Va. Cir. LEXIS 74 (Hanover County Jan. 30, 2009).

In a case in which, pursuant to § 43-17.1 , a construction sought to invalidate a mechanics’ lien filed by a general contractor and the contractor argued that its fabrication of steel components for use in the planned building project met the requirements of § 43-3 , since no means, methods, or products of the contractor’s steel fabrication reached the building site, that labor did not allow a mechanics’ lien under the “performing labor” clause of § 43-3 . Dallan Constr., Inc. v. Super Structures Gen. Contrs., Inc., 79 Va. Cir. 11, 2009 Va. Cir. LEXIS 74 (Hanover County Jan. 30, 2009).

In a case in which, pursuant to § 43-17.1 , a construction sought to invalidate a mechanics’ lien filed by a general contractor and the contractor argued that it performed building planning or architectural work, since the building ultimately erected, and now liened, incorporated none of the contractor’s architectural efforts, the architectural and planning work performed by the contractor, having never enhanced the burdened property, did not fall under the “performing labor” clause of § 43-3 . Dallan Constr., Inc. v. Super Structures Gen. Contrs., Inc., 79 Va. Cir. 11, 2009 Va. Cir. LEXIS 74 (Hanover County Jan. 30, 2009).

Mechanic’s lien held valid. —

Contractor’s mechanics lien was valid and enforceable because the contractor was a general contract and complied with the mechanic’s lien statutory requirements as the contractor completed the agreed upon renovations, which were authorized by a corporate barber shop’s owners and were worth more than the statutorily required requisite value, and the contractor properly perfected its mechanic’s lien. Furthermore, the barber shop failed to demonstrate that the contractor needed privity of contract with the barber shop itself. Barber of Seville v. Bironco, Inc., 106 Va. Cir. 306, 2020 Va. Cir. LEXIS 466 (Fairfax County Nov. 19, 2020).

Proof of inaccuracy in work description. —

Complaint insufficient to enforce lien. —

Complaint failed to allege facts sufficient to show a cause of action to enforce the subcontractor’s lien against trusts because it did not claim any party authorized improvement of the property under a construction contract; for the construction contract to correspond to the subcontractor’s enforcement of its lien against the ownership interests of either one or both of the trusts, it had to be alleged that one or both trusts authorized through the contract the work on a store. Lin R. Rogers Elec. Contrs. Inc. v. Flynn Constr. Mgmt. Gen. Contr., Inc., 99 Va. Cir. 515, 2010 Va. Cir. LEXIS 367 (Essex County Dec. 9, 2010).

OPINIONS OF THE ATTORNEY GENERAL

Notice requirements. —

Notice stating that the owner is notified of the filing of a lien that is recorded with a general contractor’s mechanic’s lien, which merely indicates on its face that it is addressed to the owner at its last known address and lists the certified mail number, is not sufficient to satisfy the strict statutory requirement of § 43-4 . See opinion of Attorney General to The Honorable Ken Cuccinelli, II, Member, Senate of Virginia, 09-005, 2009 Va. AG LEXIS 24 (7/8/09).

§ 43-4. Perfection of lien by general contractor; recordation and notice.

A general contractor, or any other lien claimant under §§ 43-7 and 43-9 , in order to perfect the lien given by § 43-3 , provided such lien has not been barred by § 43-4.01 C, shall file a memorandum of lien at any time after the work is commenced or material furnished, but not later than 90 days from the last day of the month in which he last performs labor or furnishes material, and in no event later than 90 days from the time such building, structure, or railroad is completed, or the work thereon otherwise terminated. The memorandum shall be filed in the clerk’s office in the county or city in which the building, structure or railroad, or any part thereof is located. The memorandum shall show the names and addresses of the owner of the property sought to be charged, and of the claimant of the lien, the amount and consideration of his claim, the time or times when the same is or will be due and payable, and the date from which interest is claimed, verified by the oath of the claimant, or his agent, including a statement declaring his intention to claim the benefit of the lien, and giving a brief description of the property on which he claims a lien. The memorandum shall also contain the claimant’s license or certificate number issued by the Board for Contractors pursuant to Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1, if any, and the date such license or certificate was issued and the date such license or certificate expires. It shall be the duty of the clerk in whose office the memorandum is filed to record and index the same as provided in § 43-4.1 , in the name of the claimant of the lien and of the owner of the property. From the time of such recording and indexing all persons shall be deemed to have notice thereof. A lien claimant who is a general contractor, and not lien claimants under §§ 43-7 and 43-9 , also shall file along with the memorandum of lien, a certification of mailing of a copy of the memorandum of lien on the owner of the property at the owner’s last known address. The cost of recording the memorandum shall be taxed against the person found liable in any judgment or decree enforcing such lien. The lien claimant may file any number of memoranda but no memorandum filed pursuant to this chapter shall include sums due for labor or materials furnished more than 150 days prior to the last day on which labor was performed or material furnished to the job preceding the filing of such memorandum. However, any memorandum may include (i) sums withheld as retainages with respect to labor performed or materials furnished at any time before it is filed, but not to exceed 10 percent of the total contract price and (ii) sums which are not yet due because the party with whom the lien claimant contracted has not yet received such funds from the owner or another third party. The time limitations set forth herein shall apply to all labor performed or materials furnished on construction commenced on or after July 1, 1980. An inaccuracy in the memorandum as to the claimant’s license or certificate number, if any, the date such license or certificate was issued, or the date such license or certificate expires shall not bar a person from perfecting a lien if the claimant can otherwise be reasonably identified in the records of the Board for Contractors.

History. Code 1919, § 6427; 1940, p. 401; 1968, c. 568; 1976, c. 413; 1980, c. 491; 1992, cc. 779, 787; 1999, c. 533; 2003, c. 698; 2007, c. 505; 2013, c. 293; 2019, c. 243.

Cross references.

As to curing of errors and inaccuracies in memorandum, see § 43-15 .

As to oaths, see §§ 49-4 through 49-10 .

The 1999 amendment, in the next-to-last sentence, inserted “(i)” preceding “sums withheld” and inserted “and (ii) sums which are not yet due because the party with whom the lien claimant contracted has not yet received such funds from the owner or another third party.”

The 2003 amendments.

The 2003 amendment by c. 698 substituted “90 days” for “ninety days” twice in the first sentence, inserted the present sixth sentence, and substituted “10 percent” for “ten percent” in the present ninth sentence.

The 2007 amendments.

The 2007 amendment by c. 505 inserted “and not lien claimants under §§ 43-7 and 43-9 ” following “general contractor” in the sixth sentence.

The 2013 amendments.

The 2013 amendment by c. 293 added the fourth and last sentences.

The 2019 amendments.

The 2019 amendment by c. 243 inserted “and addresses” and “and the date from which interest is claimed” in the third sentence and made stylistic changes.

Law Review.

For survey of Virginia commercial law for the year 1970-1971, see 57 Va. L. Rev. 1527 (1971).

for the year 1974-1975, see 61 Va. L. Rev. 1668 (1975).

for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

for the year 1976-77, see 63 Va. L. Rev. 1377 (1977).

For survey of Virginia law on business associations for the year 1977-1978, see 64 Va. L. Rev. 1375 (1978).

For survey of Virginia commercial law for the year 1977-1978, see 64 Va. L. Rev. 1383 (1978).

For comment discussing the application of the blanket lien with respect to multi-unit development in Virginia, see 13 U. Rich. L. Rev. 637 (1979).

For comment, “United States v. Kimbell Foods, Inc.: A Problem or Solution in Resolving Lien Priority Disputes?,” see 36 Wash. & Lee L. Rev. 1203 (1979).

For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

For a review of construction law in Virginia for year 1999, see 33 U. Rich. L. Rev. 827 (1999).

For 2000 survey of Virginia property law, see 34 U. Rich. L. Rev. 981 (2000).

For survey article on judicial decisions in real estate law from June 1, 2002 through June 1, 2003, see 38 U. Rich. L. Rev. 223 (2003).

For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

For review of judicial decisions of significance in Virginia affecting construction law, see 43 U. Rich. L. Rev. 107 (2008).

For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

Research References.

Virginia Forms (Matthew Bender). No. 6-504 Memorandum for Mechanic’s Lien by General Contractor; No. 6-501 et seq.

CASE NOTES

Analysis

I. General Consideration.
II. Time of Filing.
III. The Memorandum and Affidavit; Recordation and Indexing Thereof.

I.General Consideration.

The provisions of this chapter are, each and all, indispensable to the creation of the lien; hence if any one of them is not complied with, no lien is acquired. Trustees Franklin St. Church v. Davis, 85 Va. 193 , 7 S.E. 245 , 1888 Va. LEXIS 27 (1888).

Perfection of mechanics’ liens is completed upon filing the memorandum required by this section and does not involve the separate, second step of filing an enforcement suit under § 43-22 ; once a memorandum is properly filed in proper form perfection is complete. Concrete Structures, Inc. v. Tidewater Crane and Rigging Co., 261 Bankr. 627, 2001 U.S. Dist. LEXIS 3675 (E.D. Va. 2001).

The 150-day limitation period is one of the prerequisites, etc. required by this section in order to perfect a mechanic’s lien, and violation of this rule renders the entire mechanic’s lien unenforceable. Carolina Builders Corp. v. Cenit Equity Co., 257 Va. 405 , 512 S.E.2d 550, 1999 Va. LEXIS 28 (1999).

Supplier’s mechanic’s liens were invalid and unenforceable under § 43-4 because they included sums due for materials furnished more than 150 days prior to the last day on which materials were supplied to the jobs preceding the filing of the memoranda; the supplier violated one of the prerequisites required by § 43-4 in order to perfect its mechanic’s liens, and § 43-15 had no application. Smith Mt. Bldg. Supply, LLC v. Windstar Props., LLC, 277 Va. 387 , 672 S.E.2d 845, 2009 Va. LEXIS 24 (2009).

Perfection statute contrasted with enforcement statutes. —

A lien created by § 43-3 is one in derogation of the common law. Once perfected in accordance with this section, the lien can be enforced by suit brought as provided in §§ 43-17 and 43-22 . In Virginia provisions of the enforcement statutes are to be construed liberally while the requirements of the perfection statute are to be construed strictly. American Std. Homes Corp. v. Reinecke, 245 Va. 113 , 425 S.E.2d 515, 9 Va. Law Rep. 776, 1993 Va. LEXIS 5 (1993).

Legislative intent. —

Recognizing that 150-day limitation period might necessitate that claimant file multiple liens during the course of a construction project, the legislature specifically authorized the filing of “any number of memoranda.” Therefore, a correct application of the statutory 150-day limitation period does not render meaningless the 90-day filing limitation, but instead comports with the legislature’s desire to prevent undisclosed or inchoate liens. Carolina Builders Corp. v. Cenit Equity Co., 257 Va. 405 , 512 S.E.2d 550, 1999 Va. LEXIS 28 (1999).

Interest allowed in excess of legal rate on debts underlying liens. —

A substantial compliance with this section is essential to the creation of the lien. Gilman v. Ryan, 95 Va. 494 , 28 S.E. 875 , 1898 Va. LEXIS 5 (1898).

Or lien will be lost. —

While one who purchases property pending the construction of a building takes it subject to the risk that a lien may thereafter be perfected thereon, unless the lien is perfected within the proper time and in the proper manner it is lost. Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801, 1941 Va. LEXIS 194 (1941).

Actual notice to purchaser is insufficient. —

Actual notice of a contractor’s claim will not affect a purchaser, if this section has not been complied with. Shackleford v. Beck, 80 Va. 573 , 1885 Va. LEXIS 95 (1885).

Duty to place lien only upon property worked and no more. —

Where a mechanic files a memorandum of mechanic’s lien against two or more parcels but has not worked on all the parcels and where the mechanic attempts to enforce that lien against the several properties, that lien must be declared invalid in its entirety since it is the mechanic’s duty to place his lien upon the property on which he worked and no more. Woodington Elec., Inc. v. Lincoln Sav. & Loan Ass'n, 238 Va. 623 , 385 S.E.2d 872, 6 Va. Law Rep. 780, 1989 Va. LEXIS 161 (1989).

It rests upon the claimant of the lien to show compliance with all essential requirements of this section. Shackleford v. Beck, 80 Va. 573 , 1885 Va. LEXIS 95 (1885); Trustees Franklin St. Church v. Davis, 85 Va. 193 , 7 S.E. 245 , 1888 Va. LEXIS 27 (1888).

A mechanic’s lien, although a statutory creation, necessarily has its foundation in a contract, and it is a contractor’s performance under the contract that gives rise to the inchoate lien. United Masonry, Inc. v. Riggs Nat'l Bank, 233 Va. 476 , 357 S.E.2d 509, 3 Va. Law Rep. 2739, 1987 Va. LEXIS 216 (1987).

Debtor not divested of property by mere filing and recordation. —

It does not appear that the mere filing and recordation of the lien operates to divest the debtor of his property. W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

Effect of filing and recording against claim of United States. —

As against claim of United States, the interim steps of filing and recording the lien, without obtaining a final judgment enforcing the lien against the property, serve “merely as a caveat of a more perfect lien to come.” W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

Effect of releasing portion of property subject to blanket lien. —

The release of a portion of property subject to a blanket lien will release all of the property subject to the blanket lien if third-party interests are injuriously affected by the release. Pic Constr. Co. v. First Union Nat'l Bank, 218 Va. 915 , 241 S.E.2d 804, 1978 Va. LEXIS 246 (1978).

Optional remedies of subcontractor. —

The subcontractor, under the provisions of § 43-18 , may rely on the general contractor’s lien or, under the provisions of this section and §§ 43-3 and 43-7 , he may file and undertake to enforce his own independent lien. VNB Mtg. Corp. v. Lone Star Indus., Inc., 215 Va. 366 , 209 S.E.2d 909, 1974 Va. LEXIS 293 (1974).

A person making improvements to land is deemed a general contractor if that person is in contractual privity with the owner. West Alexandria Properties, Inc. v. First Va. Mtg. & Real Estate Inv. Trust, 221 Va. 134 , 267 S.E.2d 149, 1980 Va. LEXIS 224 (1980).

Sale of entire parcel of land to satisfy perfected lien improper. —

General contractor sufficiently demonstrated to the county commissioner and the circuit court that the last day it performed labor or furnished material to the job was September 28, 2007, and sufficiently proved to both the county commissioner and the circuit court that it did not include sums due for labor provided or material furnished before May 2, 2007, nor did it perform labor or furnish material after September 28, 2007; accordingly, the general contractor properly perfected its lien under § 43-4 . On the record, the county commissioner and the circuit court erred in approving the sale of the entire parcel of land to satisfy the subcontractors’ liens, where no evidence was introduced to support the decision. Glasser & Glasser, PLC v. Jack Bays, Inc., 285 Va. 358 , 741 S.E.2d 599, 2013 Va. LEXIS 29 (2013).

Relation back of perfection may defeat rights of bankruptcy trustee. —

So long as state law permits a relation-back type of perfection which would defeat an intervening lien creditor, 11 U.S.C. § 546(b) allows the creditor to perfect and allows the relation-back feature to defeat the rights of the bankruptcy trustee. The Virginia mechanic’s lien statutes allow for such a relation back. H.T. Bowling, Inc. v. Bain, 52 Bankr. 58, 1985 Bankr. LEXIS 5430 (Bankr. W.D. Va. 1985), aff'd in part and rev'd in part, 64 Bankr. 581, 1986 U.S. Dist. LEXIS 26191 (W.D. Va. 1986).

Single continuing account found. —

Materials and deliveries were identifiable to specific projects under “running accounts,” thus constituting a single continuing contract for each parcel. United Sav. Ass'n of Texas v. Jim Carpenter Co., 252 Va. 252 , 475 S.E.2d 788, 1996 Va. LEXIS 83 (1996).

Lien invalidated. —

Trial court properly granted a petition by a car wash pursuant to § 43-17.1 to invalidate mechanic’s liens, as a contractor’s failure to file certifications of mailing of notice to the car wash along with the memoranda of liens, as required, invalidated the liens in question. Britt Constr., Inc. v. Magazzine Clean, LLC, 271 Va. 58 , 623 S.E.2d 886, 2006 Va. LEXIS 9 (2006).

Beneficiary to deed of trust named. —

Although the lenders asserted that the contractors suits had to be dismissed since they did not name the bondholders pursuant to § 43-4 , as a named beneficiary of the deed of trust and as a trustee for the bondholders, naming the lender/trustee was sufficient to comply with the requirements that a party must name a beneficiary to the deed of trust because that beneficiary had a substantial interest in being given the opportunity to challenge the validity of the mechanics’ lien, or otherwise to litigate the elements of the lien. Glasser & Glasser, PLC v. Jack Bays, Inc., 285 Va. 358 , 741 S.E.2d 599, 2013 Va. LEXIS 29 (2013).

II.Time of Filing.

Attachment of inchoate lien prior to 1980 amendment. —

See Hadrup v. Sale, 201 Va. 421 , 111 S.E.2d 405, 1959 Va. LEXIS 244 (1959); W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

When time period began to run prior to 1980 amendment. —

See Boston & Co. v. C & O R.R., 76 Va. 180 , 1882 Va. LEXIS 16 (1882); Osborne v. Big Stone Gap Colliery Co., 96 Va. 58 , 30 S.E. 446 , 1898 Va. LEXIS 60 (1898); Northern Va. Sav. & Loan Ass'n v. J.B. Kendall Co., 205 Va. 136 , 135 S.E.2d 178, 1964 Va. LEXIS 155 (1964).

Time of “completion” may be fixed by contract. —

See Trustees Franklin St. Church v. Davis, 85 Va. 193 , 7 S.E. 245 , 1888 Va. LEXIS 27 (1888); Cain v. Rea, 159 Va. 446 , 166 S.E. 478 , 1932 Va. LEXIS 210 (1932) (decided prior to the 1980 amendment to this section).

In the absence of evidence that a contractor acted in bad faith to delay the completion of work on a project, the contractor is required to file his memorandum for mechanic’s lien 90 days from the date of completion. Dominion Trust Co. v. Kenbridge Constr. Co., 248 Va. 393 , 448 S.E.2d 659, 1994 Va. LEXIS 129 (1994).

Work is not “otherwise terminated” by sale. —

There is nothing in the statute to indicate that work on a building is “otherwise terminated” by a mere sale. Such a construction would impose an undue hardship upon the contractor and is not in keeping with the language or spirit of the statute. Hadrup v. Sale, 201 Va. 421 , 111 S.E.2d 405, 1959 Va. LEXIS 244 (1959).

Conveyance of a house and lot did not “otherwise terminate” the work upon a building within the meaning of this section and make it necessary for a lien to be filed. Hadrup v. Sale, 201 Va. 421 , 111 S.E.2d 405, 1959 Va. LEXIS 244 (1959).

Work “otherwise terminated.” —

Where the evidence showed that work under the contract ceased on Sept. 18, when the general contractor was experiencing severe financial problems and construction of the defendant’s residence was approximately two-thirds completed, the work was “otherwise terminated” on that date, within the meaning of this section. Mills v. Moore's Super Stores, 217 Va. 276 , 227 S.E.2d 719, 1976 Va. LEXIS 271 (1976).

Where the owner abdicated responsibility in favor of a trusteeship composed of its principal creditors, work was “otherwise terminated” as of that date. Northern Va. Sav. & Loan Ass'n v. J.B. Kendall Co., 205 Va. 136 , 135 S.E.2d 178, 1964 Va. LEXIS 155 (1964).

Furnishing of replacement materials did not advance date on which lien could be claimed. —

Chancellor erred in confirming the commissioner’s finding that “the furnishing of the replacement materials advanced the date . . . on which the lien could be claimed.” Because liens for the materials furnished under the material order contract were never perfected within the time prescribed by this section, they were unenforceable. American Std. Homes Corp. v. Reinecke, 245 Va. 113 , 425 S.E.2d 515, 9 Va. Law Rep. 776, 1993 Va. LEXIS 5 (1993).

Time limit not extended where trustees completed project. —

Work performed under contract with trustees committed to finish project abandoned by owner does not extend statutory time limit for filing memorandum of lien for work performed under contract with owner. American Std. Homes Corp. v. Reinecke, 245 Va. 113 , 425 S.E.2d 515, 9 Va. Law Rep. 776, 1993 Va. LEXIS 5 (1993).

90-day deadline. —

Because the circuit court was not plainly wrong in concluding that work on the church did not terminate on September 28, 2007, and because the 90-day deadline under § 43-4 applied to each individual contractor, rather than the group collectively, the validation of the mechanics’ liens of the subcontractors was not plainly wrong or without evidence to support it. Glasser & Glasser, PLC v. Jack Bays, Inc., 285 Va. 358 , 741 S.E.2d 599, 2013 Va. LEXIS 29 (2013).

Where there were three separate construction contracts, and the contractor did not begin construction under the latter two contracts until after July 1, 1980, the filing requirements of this section applied, and the liens claimed for labor and materials furnished under those contracts were not timely filed. United Masonry, Inc. v. Riggs Nat'l Bank, 233 Va. 476 , 357 S.E.2d 509, 3 Va. Law Rep. 2739, 1987 Va. LEXIS 216 (1987).

Perfection from date of injunction. —

Where federal district court effectively enjoined would-be mechanic’s lienors from perfecting their liens within the period prescribed by this section, the time of perfection, for purposes of determining priority as to fund paid into court, would be the dates of the injunctive orders. Glen Constr. Co. v. Bank of Vienna, 410 F. Supp. 402, 1976 U.S. Dist. LEXIS 15749 (E.D. Va. 1976), rev'd, 557 F.2d 1050, 1977 U.S. App. LEXIS 12629 (4th Cir. 1977).

III.The Memorandum and Affidavit; Recordation and Indexing Thereof.

Provision was intended for protection of purchasers. —

The provision for the recordation and indexing of the memorandum was intended for the protection of a purchaser who might acquire the property after the perfection of the mechanics’ lien, or a subsequent lienor who might be affected thereby. Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801, 1941 Va. LEXIS 194 (1941) (see Shackleford v. Beck, 80 Va. 573 (1885)).

It must be read in connection with §§ 55-80 through 55-105. —

The provision for the recordation of the memorandum and the indexing of the same must be read in connection with and as a part of the registry statutes, §§ 55-80 through 55-105, relating to the recordation of certain writings in order to give constructive notice thereof to interested parties. The provision was intended to conform the recordation or registration of mechanics’ liens with the recordation or registration of deeds of trust and like liens which are required to be indexed in the same manner under the registry statutes. Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801, 1941 Va. LEXIS 194 (1941).

Acknowledgment is not required. —

Section 55-106, providing that writings shall be acknowledged before being admitted to record, does not apply to mechanics’ liens filed under this section. Sprenkle v. Dillard, 10 Va. L. Reg. 431 (1904).

Perfection of a mechanics’ lien is a one-step process in Virginia. Upon the filing of a memorandum in accordance with this section, the creditor’s lien is perfected. Section 43-17 is merely a statute of limitations governing the period within which a lienor must file a claim to collect on his perfected lien. H.T. Bowling, Inc. v. Bain, 64 Bankr. 581 (W.D. Va. 1986).

Filing of complaint to enforce perfected lien violated automatic stay in bankruptcy. —

Since the filing of a bill of complaint in the state court to enforce a mechanics’ lien constitutes an attempt to enforce a perfected mechanics’ lien, and not a step in the perfection process, the contractor plainly violated the automatic stay of 11 U.S.C. § 362 by filing the bill of complaint. Section 362 treats enforcement of liens much differently than their perfection. Specifically, § 362(a)(4) prohibits the filing of suit to enforce any lien against property of the debtor’s estate. H.T. Bowling, Inc. v. Bain, 64 Bankr. 581 (W.D. Va. 1986).

Purpose and character of description of property. —

The object of requiring a description of the property is to inform the owner upon which part of his property the lien is claimed, and to give notice thereof to purchasers and creditors, so that they may identify the property and protect themselves against the lien. If the property can be reasonably identified by the description given, it is all that the law requires. Taylor v. Netherwood, 91 Va. 88 , 20 S.E. 888 , 1895 Va. LEXIS 9 (1895).

A memorandum of mechanic’s lien must contain “a brief description of the property” on which the lien is claimed. The purpose of the description is to enable an owner, purchaser, or creditor to identify the property on which the lien is claimed. If the property can be “reasonably identified,” the description is sufficient. Penrod & Stauffer Bldg. Sys. v. Metro Printing & Mailing Servs., Inc., 229 Va. 150 , 326 S.E.2d 662, 1985 Va. LEXIS 186 (1985).

“Owner” means owner at time of recordation of memorandum. —

The owner of the property referred to in this section, providing that in order to perfect a mechanics’ lien there must be filed a memorandum showing the name of the owner of the property sought to be charged, means the person who owns the property, or the interest therein to be affected, at the time of the recordation of the memorandum of the mechanics’ lien. Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801, 1941 Va. LEXIS 194 (1941).

A bill to enforce mechanics’ liens was properly dismissed where the recorded memoranda of the liens had named the original owners as the owners of the properties, whereas they should have named the owners of the properties at the time the memoranda were filed. Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801, 1941 Va. LEXIS 194 (1941).

A trustee in a deed of trust was not an “owner,” within the meaning of this section, so that the failure to name such trustee, or trustees, in a memorandum for mechanics’ lien did not invalidate the lien. Loyola Fed. Sav. & Loan Ass'n v. Herndon Lumber & Millwork, Inc., 218 Va. 803 , 241 S.E.2d 752, 1978 Va. LEXIS 229 (1978).

The filing of a memorandum of mechanic’s lien is a judicial proceeding entitling the filer to an absolute privilege against slander. Donohoe Constr. Co. v. Mount Vernon Assocs., 235 Va. 531 , 369 S.E.2d 857, 4 Va. Law Rep. 3040, 1988 Va. LEXIS 80 (1988).

A general contractor may perfect his lien without giving notice to the owner, the filing of the required memorandum for recordation in the clerk’s office being sufficient. Coleman v. Pearman, 159 Va. 72 , 165 S.E. 371 , 1932 Va. LEXIS 175 (1932), (decided prior to 2003 amendment).

The president of a corporation is not necessarily its agent for the purpose of making the affidavit required by this section. Clement v. Adams Bros.-Paynes Co., 113 Va. 546 , 75 S.E. 294 (1912).

The holding in Clement v. Adams Bros.-Paynes Co., 113 Va. 546 , 75 S.E. 294 (1912), should be read in the light of § 49-7 , subsequently enacted. — Editor’s note .

But affidavit signed as “president and agent” is sufficient. —

Where one signed an affidavit as “president and agent” of a corporation claiming a mechanics’ lien, it sufficiently appears that the affiant was acting as the agent of the corporation, and the affidavit is sufficient to support the lien. Diebold & Sons' Stone Co. v. Tatteson, 115 Va. 766 , 80 S.E. 585 , 1914 Va. LEXIS 129 (1914).

Where the memorandum stated that the property was owned by one of two named persons or by “person unknown,” this was a sufficient statement as to the ownership of the property, since one of the persons named was under contract to purchase the land and thus was equitable owner. Blanton v. Owen, 203 Va. 73 , 122 S.E.2d 650, 1961 Va. LEXIS 223 (1961).

Memorandum of joint lien claiming unapportioned amount. —

A memorandum of lien failed to comply with § 43-3 when an unapportioned amount was claimed upon all units of a condominium, whereas one contract was for work on 132 units and another was for work on common element of entire 264-unit project, and the memorandum did not seek to secure only a claim to extent plaintiff had added value but instead attempted to lien property not benefitted by work. United Masonry, Inc. v. Jefferson Mews, Inc., 218 Va. 360 , 237 S.E.2d 171, 1977 Va. LEXIS 199 (1977).

Determining substantial compliance. —

To determine whether a lienor’s actions substantially complied with § 43-4 , a court’s inquiry should be directed to whether the filing put the world on notice of the lienor’s claim. The creditor substantially complied with the requirements of § 43-4 when it listed only one co-owner of real property held as tenants by the entirety on the Memorandum of Mechanics’ Lien, because its filing satisfied the “essential purpose” of that statute. Kiser v. Russell County, 344 Bankr. 423, 2003 Bankr. LEXIS 2212 (Bankr. W.D. Va. 2003).

Verification requirement for the memoranda was substantially met where the trustee was confused or misled in anyway by the signature of the design firm’s vice-president, and the memoranda clearly identified the design firm as the claimant. Ulka Desai v. A. R. Design Grp., Inc., 293 Va. 426 , 799 S.E.2d 506, 2017 Va. LEXIS 76 (2017).

Omission of the word “trustee” did not invalidate the memoranda of mechanic’s lien where legal title in the property had vested to the trustee when she was appointed successor trustee, the trust afforded her the right to sell and encumber the property, the memoranda properly identified her as the owner, and the absence of the word did not negatively impact an index search. Ulka Desai v. A. R. Design Grp., Inc., 293 Va. 426 , 799 S.E.2d 506, 2017 Va. LEXIS 76 (2017).

Failure to perfect mechanic’s lien. —

In a mechanic’s lien dispute, a general contractor was not a necessary party to a subcontractor’s lien enforcement action because it did not have a pecuniary interest since it was neither the principal nor the surety on the bond, and it had no ability to be awarded a judgment to be paid out from the bond. The general contractor failed to perfect its mechanic’s lien on the real estate because it did not file a “memorandum of lien” and “a certification of mailing of a copy of the memorandum” of lien to the owner of the property in the county clerk’s office; the lien was lost as a result. Synchronized Constr. Servs. v. Prav Lodging, LLC, 288 Va. 356 , 764 S.E.2d 61, 2014 Va. LEXIS 155 (2014).

CIRCUIT COURT OPINIONS

Failure to properly name individual property owners subject to lien. —

Subcontractor’s mechanic’s lien did not show the names of the owners of the property sought to be charged, a complex of condominiums where the subcontractor was owed money for work completed, and therefore, the lien was invalid because it failed to apportion the damages amongst the individual owners of the condominiums. Belle View Condos. v. Drytech, Inc., 65 Va. Cir. 169, 2004 Va. Cir. LEXIS 148 (Fairfax County June 24, 2004).

Subcontractor did not need to file certification of mailing. —

Subcontractor’s mechanic’s lien was perfected because the subcontractor did not need to file a certification of mailing of a copy of the memorandum of lien on the owner of the property in order to perfect a mechanic’s lien; that requirement was applicable only to general contractors. Capstone Contr. Co. v. Am. Eagle Selfstorage, L.L.C., 72 Va. Cir. 473, 2007 Va. Cir. LEXIS 140 (Prince George County Feb. 8, 2007).

Failure of memorandum of mechanic’s lien to comply with requirements. —

Memorandum of mechanic’s lien failed to comply with the requirements of §§ 43-4 and 43-5 because the affidavit wholly failed to identify the capacity of the person executing the document on behalf of the complainant or the agent or that such person was an agent for the complainant; because the claimant was a corporation, its oath had to be verified by its agent, and there was no indication that the person making the oath possessed any such authority. Artitech, Inc. v. Naser, 75 Va. Cir. 39, 2008 Va. Cir. LEXIS 11 (Fairfax County Feb. 19, 2008).

Proof that work description was inaccurate. —

OPINIONS OF THE ATTORNEY GENERAL

Notice requirements. —

A lien that does not contain the particular mailing certification language, does not meet the definition of “inaccuracy” adopted by the Virginia Supreme Court. Therefore, § 43-15 is not applicable. See opinion of Attorney General to The Honorable Ken Cuccinelli, II, Member, Senate of Virginia, 09-005, 2009 Va. AG LEXIS 24 (7/8/09).

§ 43-4.01. Posting of building permit; identification of mechanics’ lien agent in building permit; notice to mechanics’ lien agent; effect of notice.

The building permit for any one- or two-family residential dwelling unit issued pursuant to the Uniform Statewide Building Code shall be conspicuously and continuously posted on the property for which the permit is issued until all work is completed on the property. The permit shall be posted on the property before any labor is performed or any material furnished on the property for which the building permit is issued. Nothing herein shall be construed to prohibit a permit being amended after it has been initially issued to name a mechanics’ lien agent or a new mechanics’ lien agent.
If the building permit contains the name, mailing address, and telephone number of the mechanics’ lien agent as defined in § 43-1 , any person entitled to claim a lien under this title may notify the mechanics’ lien agent then named on the permit or amended permit that he seeks payment for labor performed or material furnished by registered or certified mail or by physical delivery. Such notice shall contain (i) the name, mailing address, and telephone number of the person sending such notice, (ii) the person’s license or certificate number issued by the Board for Contractors pursuant to Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1, if any, and the date such license or certificate was issued and the date such license or certificate expires, (iii) the building permit number on the building permit, (iv) a description of the property as shown on the building permit, and (v) a statement that the person filing such notice seeks payment for labor performed or material furnished. A return receipt or other receipt showing delivery of the notice to the addressee or written evidence that such notice was delivered by the postal service or other carrier to but not accepted by the addressee shall be prima facie evidence of receipt. An inaccuracy in the notice as to the description of the property shall not bar a person from claiming a lien under this title or filing a memorandum or otherwise perfecting or enforcing a lien as provided in subsection C if the property can otherwise be reasonably identified from the description.In the event that the mechanics’ lien agent dies, resigns, or otherwise becomes unable or unwilling to serve during the construction period, the owner or the general contractor shall immediately appoint a successor mechanics’ lien agent with all the rights, duties, and obligations of the predecessor mechanics’ lien agent. An amended permit shall be displayed as provided in subsection A. Until such time as the successor is named and displayed as provided, notice given hereunder to the predecessor mechanics’ lien agent at the address shown shall be deemed good notice, notwithstanding the fact that the agent may have died, resigned or become otherwise unable or unwilling to serve.
Except as provided otherwise in this subsection, no person other than a person claiming a lien under subsection B of § 43-3 may claim a lien under this title or file a memorandum or otherwise perfect and enforce a lien under this title with respect to a one or two family residential dwelling unit if such person fails to notify any mechanics’ lien agent identified on the building permit in accordance with subsection B above (i) within 30 days of the first date that he performs labor or furnishes material to or for the building or structure or (ii) within 30 days of the date such a permit is issued, if such labor or materials are first performed or furnished by such person prior to the issuance of a building permit. However, the failure to give any such notices within the appropriate 30-day period as required by the previous sentence shall not bar a person from claiming a lien under this title or from filing a memorandum or otherwise perfecting and enforcing a lien under this title, provided that such lien is limited to labor performed or materials furnished on or after the date a notice is given by such person to the mechanics’ lien agent in accordance with subsection B above. A person performing labor or furnishing materials with respect to a one or two family residential dwelling unit on which a building permit is not posted at the time he first performs his labor or first furnishes his material or, if posted, does not state the name of the mechanics’ lien agent, shall determine from appropriate authorities whether a permit of the type described in subsection B above has been issued, the date on which it is issued, and the name of the mechanics’ lien agent, if any, that has been appointed. The issuing authority shall maintain the mechanics’ lien agent information in the same manner and in the same location in which it maintains its record of building permits issued.No person shall be required to comply with this subsection as to any memorandum of lien which is recorded prior to the issuance of a building permit nor shall any person be required to comply with this subsection when the building permit does not designate a mechanics’ lien agent.
Unless otherwise agreed in writing, the only duties of the mechanics’ lien agent shall be to receive notices delivered to him pursuant to subsection B and to provide any notice upon request to a settlement agent, as defined in § 55.1-900 , involved in a transaction relating to the residential dwelling unit.
Mechanics’ lien agents are authorized to enter into written agreements with third parties with regard to funds to be advanced to them for disbursement, and the transfer, disbursement, return and other handling of such funds shall be governed by the terms of such written agreements.
A mechanics’ lien agent as defined in § 43-1 may charge a reasonable fee for services rendered in connection with administration of notice authorized herein and the disbursement of funds for payment of labor and materials for the construction or repair of improvements on real estate.

History. 1992, cc. 779, 787; 2001, c. 532; 2010, c. 341; 2013, c. 293.

Editor’s note.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-900” for “55-525.8.”

The 2001 amendments.

The 2001 amendment by c. 532 inserted the second paragraph in subsection B and added the last sentence in the first paragraph in subsection C.

The 2010 amendments.

The 2010 amendment by c. 341 inserted the last sentence of subsection A; in subsection B, deleted “at the time of issuance” following “If” and inserted “then named on the permit or amended permit” in the first sentence of the first paragraph, and substituted “An amended” for “The” at the beginning of the second sentence of the second paragraph; and in subsection C, inserted “or, if posted, does not state the name of the mechanics’ lien agent,” “and the name of the mechanics’ lien agent, if any, that has been appointed” and made a minor stylistic change in the third sentence of the first paragraph.

The 2013 amendments.

The 2013 amendment by c. 293 added clause (ii) and redesignated former clause (ii) through (iv) as clause (iii) through (v) in subsection B; and made minor stylistic changes in subsection C.

Research References.

Virginia Forms (Matthew Bender). No. 6-504 Memorandum for Mechanic’s Lien by General Contractor.

CIRCUIT COURT OPINIONS

Lien invalidated where notice not strictly enforced. —

Where a general contractor had provided all of the required information to the mechanic’s lien agent, except his address, before bringing an action to enforce the lien, the court found that he still had failed to provide the single-document notice which contained all of the required information, as directed by § 43-4.01 , and accordingly, the court sustained the bank and trustees’ plea in bar and dismissed the action against them; the requirements of subsection B of this section were to be strictly construed. Parish v. Chowdhury, 59 Va. Cir. 239, 2002 Va. Cir. LEXIS 349 (Winchester July 9, 2002).

§ 43-4.1. Liens to be recorded in deed books and indexed in general index of deeds.

Notwithstanding the provision of any other section of this title, or any other provision of law requiring documents to be recorded in the miscellaneous lien book or the deed books in the clerk’s office of any court, on and after July 1, 1964, all memoranda or notices of liens, in the discretion of the clerk, shall be recorded in the deed books in such clerk’s office, and shall be indexed in the general index of deeds, and such general index shall show the type of such lien.

History. 1960, c. 81; 1964, c. 338; 1968, c. 568; 1985, c. 392.

Cross references.

As to contributions by co-owners for repair or maintenance of common elements, see § 55.1-2014 .

Law Review.

For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

§ 43-5. Sufficiency of memorandum and affidavit required by § 43-4.

The memorandum and affidavit required by § 43-4 shall be sufficient if substantially in form and effect as follows:

Memorandum for Mechanic’s Lien Claimed by General Contractor. Name of owner: Address of owner: Name of claimant: Address of claimant: Contractor license or certificate number of claimant (if applicable): Issuance date of license or certificate (if applicable): Expiration date of license or certificate (if applicable): If no contractor license or certificate number is included, the claimant certifies that such a valid license or certificate is not required by law for the work done for which the benefit of a lien is claimed. 1. Type of materials or services furnished: 2. Amount claimed: $ If any part of the Amount claimed is not due as of the date of this mechanic’s lien, identify the date or event upon which it will be due and the sum(s) to which the due date(s) or event(s) apply: 3. Type of structure on which work done or materials furnished: 4. Brief description and location of real property: 5. Date from which interest on the above amount is claimed: Date: It is the intent of the claimant to claim the benefit of a lien. The undersigned hereby certifies that he has mailed a copy of this memorandum of lien to the owner of the property at the owner’s last known address: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (address), on . . . . . . . . (date of mailing). (Name of claimant). Affidavit. State of Virginia, County (or city) of . . . . . . . . . . . . . . . . . ., to wit: I, (notary or other officer) for the county (or city) aforesaid, do certify that . . . . . . . . . . . . . . . . . . . . . . claimant, or . . . . . . . . . . . . . . . ., agent for claimant, this day made oath before me in my county (or city) aforesaid that . . . . . . . . . . . . . . . . . . . . . (the owner) is justly indebted to claimant in the sum of . . . . . . . . . . . . . . dollars, for the consideration stated in the foregoing memorandum, and that the same is payable as therein stated. Given under my hand this the . . . . . . . . day of . . . . . . . . . . . . . . . . ., 20. . . . (Notary Public or Magistrate, et cetera.)

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History. Code 1919, § 6427; 1940, p. 402; 1968, c. 568; 2007, c. 504; 2013, c. 293; 2019, c. 243.

The 2007 amendments.

The 2007 amendment by c. 504 inserted the language beginning “It is the intent of the claimant” and ending “(date of mailing)” following Item 5.

The 2013 amendments.

The 2013 amendment by c. 293 added the language beginning “Contractor license or certificate number of claimant” and ending “which the benefit of a lien is claimed” preceding item 1.

The 2019 amendments.

The 2019 amendment by c. 243 inserted the second paragraph of subdivision 2.

Law Review.

For survey on creditors’ rights in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989).

CASE NOTES

Relation back of perfection may defeat rights of bankruptcy trustee. —

So long as state law permits a relation-back type of perfection which would defeat an intervening lien creditor, 11 U.S.C. § 546(b) allows the creditor to perfect and allows the relation-back feature to defeat the rights of the bankruptcy trustee. The Virginia mechanics’ lien statutes allow for such a relation back. H.T. Bowling, Inc. v. Bain, 52 Bankr. 58, 1985 Bankr. LEXIS 5430 (Bankr. W.D. Va. 1985), aff'd in part and rev'd in part, 64 Bankr. 581, 1986 U.S. Dist. LEXIS 26191 (W.D. Va. 1986).

Determining substantial compliance. —

Design firm was entitled to the safe harbor of § 43-5 where the memoranda closely tracked the required form, they sufficiently noticed that the owner claimed the amount due, and any defect did not thwart notice to third parties. Ulka Desai v. A. R. Design Grp., Inc., 293 Va. 426 , 799 S.E.2d 506, 2017 Va. LEXIS 76 (2017).

CIRCUIT COURT OPINIONS

Failure of memorandum of mechanic’s lien to substantially conform. —

§ 43-6. Repealed by Acts 1968, c. 568.

§ 43-7. Perfection of lien by subcontractor; extent of lien; affirmative defense; provisions relating to time-share estates.

Any subcontractor, in order to perfect the lien given him by § 43-3 shall comply with § 43-4 , and in addition give notice in writing to the owner of the property or his agent of the amount and character of his claim. But the amount for which a subcontractor may perfect a lien under this section shall not exceed the amount in which the owner is indebted to the general contractor at the time the notice is given, or shall thereafter become indebted to the general contractor upon his contract with the general contractor for such structure or building or railroad. It shall be an affirmative defense or affirmative partial defense, as the case may be, to a suit to perfect a lien of a subcontractor that the owner is not indebted to the general contractor or is indebted to the general contractor for less than the amount of the lien sought to be perfected.
Where the property referred to in subsection A hereof is a time-share unit, as defined by § 55.1-2200 , the word “agent,” as used in subsection A, shall be deemed to include the developer, during the developer control period, or the time-share estate owners’ association, after the developer control period.Within ten days of receipt of the notice, the developer or the time-share estate owners’ association shall mail by first class mail a copy of the notice to all time-share estate owners whose interests are affected by the subcontractor’s lien on the time-share unit. Failure on the part of the developer or time-share estate owners’ association to so notify the appropriate time-share estate owners within the time period set forth above shall result in the developer’s or the association’s being liable for the full amount of the subcontractor’s claim, but such failure shall not affect the validity of any lien perfected under this section. Assessments levied by the estate owners’ association to pay the liability hereby imposed shall be made only against the time-share estate owners of record in the time-share estate project at the time the liability was incurred.
Where the property referred to in subsection A hereof is a time-share unit, as defined by § 55.1-2200 , the memorandum required to be filed pursuant to § 43-4 need show only the name of the developer during the developer control period, or the time-share estate owners’ association, after the developer control period.

History. Code 1919, § 6428; 1979, c. 412; 1984, c. 521.

Editor’s note.

Law Review.

For survey of Virginia commercial law for the year 1970-1971, see 57 Va. L. Rev. 1527 (1971).

for the year 1974-1975, see 61 Va. L. Rev. 1668 (1975).

for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

For survey of Virginia law on business associations for the year 1977-1978, see 64 Va. L. Rev. 1375 (1978).

For survey of Virginia commercial law for the year 1978-1979, see 66 Va. L. Rev. 217 (1980).

For review of judicial decisions of significance in Virginia affecting construction law, see 43 U. Rich. L. Rev. 107 (2008).

For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

Research References.

Virginia Forms (Matthew Bender). No. 6-506 Memorandum for Mechanic’s Lien by Subcontractor; No. 6-507 Memorandum for Mechanic’s Lien by Subcontractor — Preprinted Form.

CASE NOTES

Analysis

I. General Consideration.
II. Notice.

I.General Consideration.

Optional remedies of subcontractor. —

The subcontractor, under the provisions of § 43-18 , may rely on the general contractor’s lien or, under the provisions of this section and §§ 43-3 and 43-4 , he may file and undertake to enforce his own independent lien. VNB Mtg. Corp. v. Lone Star Indus., Inc., 215 Va. 366 , 209 S.E.2d 909, 1974 Va. LEXIS 293 (1974).

This section was designed to protect subcontractors, and create a liability which would not otherwise exist. Coleman v. Pearman, 159 Va. 72 , 165 S.E. 371 , 1932 Va. LEXIS 175 (1932).

But the terms of the section must be met before its benefits can be enjoyed. Coleman v. Pearman, 159 Va. 72 , 165 S.E. 371 , 1932 Va. LEXIS 175 (1932).

Substantial compliance is essential. —

A substantial compliance with this section is essential to the creation of the lien. Gilman v. Ryan, 95 Va. 494 , 28 S.E. 875 , 1898 Va. LEXIS 5 (1898).

There must be a substantial compliance with that portion of this chapter which relates to the creation of the lien, although the provisions with respect to its enforcement should be liberally construed. H.N. Francis & Co. v. Hotel Rueger, Inc., 125 Va. 106 , 99 S.E. 690 , 1919 Va. LEXIS 12 (1919) (see Clement v. Adams Bros.-Paynes Co., 113 Va. 546 , 75 S.E. 294 (1912); Maddux v. Buchanan, 121 Va. 102 , 92 S.E. 830 (1917); Coleman v. Pearman, 159 Va. 72 , 165 S.E. 371 (1932), overruled on other grounds, Mills v. Moore’s Super Stores, 217 Va. 276 , 227 S.E.2d 719 (1976)).

The limitations of this section are for the protection of the owner from double liability. Concrete Ready-Mix of Lynchburg, Inc. v. County Green Ltd. Partnership, 438 F. Supp. 701, 1977 U.S. Dist. LEXIS 14474 (W.D. Va. 1977), rev'd, 604 F.2d 289, 1979 U.S. App. LEXIS 12803 (4th Cir. 1979).

The statutory limitation of the owner’s liability is designed to relieve the owner of the possibility of having to make double payment under the contract. Sinicrope v. Black Diamond Sav. & Loan Ass'n, 21 Bankr. 476, 1982 Bankr. LEXIS 4248 (Bankr. W.D. Va. 1982).

Under this section, the “owner” is the same person who is referred to in § 43-4 . Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801, 1941 Va. LEXIS 194 (1941).

Owner’s liability on mechanics’ liens is limited by statute to the amount of the retainage. Sinicrope v. Black Diamond Sav. & Loan Ass'n, 21 Bankr. 476, 1982 Bankr. LEXIS 4248 (Bankr. W.D. Va. 1982).

Surety’s liability not affected. —

The limitation of the owner’s liability to the amount remaining unpaid under the contract in no way affects the liability of the surety. Sinicrope v. Black Diamond Sav. & Loan Ass'n, 21 Bankr. 476, 1982 Bankr. LEXIS 4248 (Bankr. W.D. Va. 1982).

Mechanics’ liens cannot be perfected against public buildings and other public improvements. Thomas Somerville Co. v. Broyhill, 200 Va. 358 , 105 S.E.2d 824, 1958 Va. LEXIS 196 (1958).

Work must be performed or material furnished. —

Before a subcontractor is entitled to claim a lien on a building he must, under his contract with the general contractor, have performed some work or furnished some material for which the general contractor is under contractual obligation to pay. John T. Wilson Co. v. McManus, 162 Va. 130 , 173 S.E. 361 , 1934 Va. LEXIS 241 (1934).

It is apparent from the language of § 43-4 that no lien can be perfected under this section before the work for which the subcontractor engages is done, i.e., before his contract is completed. Moore v. Rolin, 89 Va. 107 , 15 S.E. 520 , 1892 Va. LEXIS 77 (1892).

Owner must be indebted to general contractor. —

Where it satisfactorily appears from the evidence that there was no time after notice to the defendant owner of the claim of the subcontractors when he was indebted in any amount to the general contractor, the owner was under no liability towards the subcontractors. Maddux v. Buchanan, 121 Va. 102 , 92 S.E. 830 , 1917 Va. LEXIS 14 (1917).

The owner, at or after the time it was notified of the lienor’s claim, was not indebted to the general contractor. It follows that the trial court did not err in ruling that the mechanic’s lien could not be enforced against the owner’s property. Henderson & Russell Assocs. v. Warwick Shopping Center, Inc., 217 Va. 486 , 229 S.E.2d 878, 1976 Va. LEXIS 309 (1976).

And general contractor must be indebted to subcontractor. —

If the general contractor is not indebted to the subcontractor, the subcontractor is not entitled to a lien. John T. Wilson Co. v. McManus, 162 Va. 130 , 173 S.E. 361 , 1934 Va. LEXIS 241 (1934).

Extent of lien is limited by amount of indebtedness. —

A well-defined legislative policy in Virginia, as expressed in this section and §§ 43-9 , 43-11 and 43-16 , is that generally the extent of the liability of an owner to a subcontractor or subcontractors is limited to the amount in which the owner is indebted to the general contractor at the time notice to the owner is given by the subcontractor or subcontractors. This policy likely found its source in what is known as the “New York System,” under which the lien of a subcontractor or materialman depends on, and is limited by, the amount remaining due the general contractor at or subsequent to notice by the subcontractor served on the owner. Nicholas v. Miller, 182 Va. 831 , 30 S.E.2d 696, 1944 Va. LEXIS 239 (1944) (see Maddux v. Buchanan, 121 Va. 102 , 92 S.E. 830 (1917)).

The maximum amount for which the subcontractor is entitled to claim a lien is governed by the condition of accounts between the owner and the general contractor at the time notice is given. John T. Wilson Co. v. McManus, 162 Va. 130 , 173 S.E. 361 , 1934 Va. LEXIS 241 (1934).

Under this section, a subcontractor may perfect his own lien, but the amount secured by this lien cannot exceed the amount in which the owner is indebted to the general contractor at the time the notice is given, or shall thereafter become indebted to the general contractor upon his contract. Knight v. Ferrante, 202 Va. 243 , 117 S.E.2d 283, 1960 Va. LEXIS 213 (1960).

The lien of a subcontractor is limited to the amount in which the owner is indebted to the general contractor, at or after the time the owner is given notice of the subcontractor’s claim. Henderson & Russell Assocs. v. Warwick Shopping Center, Inc., 217 Va. 486 , 229 S.E.2d 878, 1976 Va. LEXIS 309 (1976).

And subcontractor is bound by terms of general contract as to payment. —

The settled general rule is that a subcontractor is charged with notice and bound by the terms of the general contract, and this rule applies especially to the mode and terms of payment agreed upon between the owner and the general contractor. Maddux v. Buchanan, 121 Va. 102 , 92 S.E. 830 , 1917 Va. LEXIS 14 (1917).

But owner cannot defeat lien by giving contractor his negotiable notes. —

The intent of the provision “But the amount for which a subcontractor may perfect a lien under this section shall not exceed the amount in which the owner is indebted to the general contractor at the time the notice is given,” was to limit the owner’s liability to the contract price of the building subject to any payments made to the general contractor for labor and materials furnished and used as its construction progressed; but the owner cannot deprive subcontractors of the lien given them by this chapter by giving to the general contractor, in payment for labor and materials, his personal obligation, evidenced by his negotiable notes. Kinnier Co. v. Cofer, 13 Va. L. Reg. 238 (1927).

When the owner gives the general contractor his notes for the purpose of raising money to secure labor and purchase material for the construction of a building, and the general contractor negotiates the notes to a person who knows their purpose, it seems that this section gives the holder notice of the rights of the subcontractors, and he is bound to see to the application of the proceeds of the notes. He cannot accept the notes in discharge of an antecedent debt of the general contractor. Kinnier Co. v. Cofer, 13 Va. L. Reg. 238 (1927).

Failure to allege indebtedness of owner to general contractor does not render the bill demurrable. Blanton v. Owen, 203 Va. 73 , 122 S.E.2d 650, 1961 Va. LEXIS 223 (1961).

Liens of subcontractors not defeated by stipulation in general contract. —

The fact that the contract stipulated that the final payment to the general contractor was not to be due until he had delivered to the owner a complete release of all liens or receipts in full covering all labor and materials for which a lien could be filed, and that this had not been done, did not defeat the liens of the subcontractors. Knight v. Ferrante, 202 Va. 243 , 117 S.E.2d 283, 1960 Va. LEXIS 213 (1960).

Price of material guaranteed by owner credited on balance due contractor. —

Under this section, where the owner guarantees the amount of material used by the contractors in the construction of a house, he is entitled to credit of that amount on balance due the contractor as against a mechanics’ lien filed thereafter. Thomas & Co. v. McCauley, 143 Va. 451 , 130 S.E. 396 , 1925 Va. LEXIS 280 (1925) (see Schrieber, Sons & Co. v. Citizens Bank, 99 Va. 257 , 38 S.E. 134 (1901)).

Extra work as separate transaction. —

Extra work not covered or contemplated by the original contract, though performed by the same general contractor, is to be considered a separate and distinct transaction in controversy between the owner and the subcontractor. Schrieber, Sons & Co. v. Citizens Bank, 99 Va. 257 , 38 S.E. 134 , 1901 Va. LEXIS 37 (1901).

Retention of percentage by owner for owner’s benefit alone. —

The reservation by the owner of a percentage of the cost of construction of a building until its completion, with the right to supply any deficiency and deduct the cost from any money due or to become due under the contract, is for the benefit of the owner alone, and not for subcontractors who may be thereafter employed. Thus the amount of a subcontractor’s lien cannot be determined by the amount of the reserved sum, where orders drawn upon the owner by the general contractor in favor of subcontractors were paid by the owner before the lien in question was perfected, notwithstanding the fact that, under the terms of the contract, the reserved sum was not due and payable to the general contractor until after the date on which the lien was perfected. Schrieber, Sons & Co. v. Citizens Bank, 99 Va. 257 , 38 S.E. 134 , 1901 Va. LEXIS 37 (1901).

Liability of owner to contractor’s employee. —

Where owner had paid contractor more than contract called for, owner was not liable to contractor’s employee for wages or because of a mechanics’ lien filed by him. Monk v. Walters, 195 Va. 246 , 78 S.E.2d 202, 1953 Va. LEXIS 194 (1953).

Action for defamation lies for premature filing of lien. —

Where a subcontractor files a mechanics’ lien before completion of the work, he is liable to an action for damages for injuries thereby done the contractor. In such an action, however, the declaration should charge some special damage to the plaintiff, as the language of the alleged lien does not necessarily import injurious defamation. Moore v. Rolin, 89 Va. 107 , 15 S.E. 520 , 1892 Va. LEXIS 77 (1892).

And note induced by threat to file lien prematurely is without consideration. —

Where subcontractors had no right, in view of this section, to file a mechanics’ lien, a note given because of a threat that they would file such a lien was without consideration. Hooff v. Paine, 172 Va. 481 , 2 S.E.2d 313, 1939 Va. LEXIS 252 (1939).

Relation back of perfection may defeat rights of bankruptcy trustee. —

So long as state law permits a relation-back type of perfection which would defeat an intervening lien creditor, 11 U.S.C. § 546(b) allows the creditor to perfect and allows the relation-back feature to defeat the rights of the bankruptcy trustee. The Virginia mechanics’ lien statutes allow for such a relation back. H.T. Bowling, Inc. v. Bain, 52 Bankr. 58, 1985 Bankr. LEXIS 5430 (Bankr. W.D. Va. 1985), aff'd in part and rev'd in part, 64 Bankr. 581, 1986 U.S. Dist. LEXIS 26191 (W.D. Va. 1986).

Evidence insufficient to support affirmative defense of payment. —

Where owner asserted that debt arose under a separate oral contract for work which did not include work performed by subcontractors, the evidence reflected that these subcontractors provided goods both for the construction of the sewer outfall and for Section 1 work. More importantly, considering (1) the lack of differentiation between the two contracts in the record-keeping methods utilized by the owner and general contractor, (2) the subcontractors’ lack of knowledge and control over the allocation of goods and services to a specific contract, and (3) the language in the release for both the sewer outfall and Section 1 payments that materials were provided for “the utilities for the entire subdivision,” the trial court did not err in holding that there was only one contract as to the owner and the subcontractors and that owner failed to establish its affirmative defense of full or partial payment to the subcontractor’s lien. Thompson v. Air Power, Inc., 248 Va. 364 , 448 S.E.2d 598, 1994 Va. LEXIS 120 (1994).

II.Notice.

The notice required by this section affords protection to the owner who is not in privity of contract with the subcontractor, so that he may not be required to pay twice for the same work and materials. Concrete Ready-Mix of Lynchburg, Inc. v. County Green Ltd. Partnership, 438 F. Supp. 701, 1977 U.S. Dist. LEXIS 14474 (W.D. Va. 1977), rev'd, 604 F.2d 289, 1979 U.S. App. LEXIS 12803 (4th Cir. 1979).

Only when the owner receives the notice to which he is entitled does he incur a legal obligation to the subcontractor. Mills v. Moore's Super Stores, 217 Va. 276 , 227 S.E.2d 719, 1976 Va. LEXIS 271 (1976).

Actual knowledge of owner is no substitute for written notice. —

If a subcontractor desires to obtain a lien, or to bind the owner personally, he is required by the express terms of this section and § 43-11 to give written notice of the amount and character of his claim. Knowledge acquired by the owner through other means than a written notice from the subcontractor, cannot be substituted for the statutory requirement, in the absence of affirmative evidence showing that the giving of written notice was waived. Failure to perform this essential requirement of this section is fatal to the establishment of the lien. Coleman v. Pearman, 159 Va. 72 , 165 S.E. 371 , 1932 Va. LEXIS 175 (1932).

There is no requirement in this section that written notice to the owner shall be given within any specified time. Mills v. Moore's Super Stores, 217 Va. 276 , 227 S.E.2d 719, 1976 Va. LEXIS 271 (1976).

Sufficient compliance with notice requirements. —

Where the first notices to the owners were served by two subcontractors more than 60 days after the work was terminated, but before the chancery suit was instituted to enforce the liens and additional notices were served after the suit was commenced, but before there was any change of position by the owners, there was sufficient compliance by these subcontractors with the notice requirements of this section. Mills v. Moore's Super Stores, 217 Va. 276 , 227 S.E.2d 719, 1976 Va. LEXIS 271 (1976) (decided under former § 43-7 ).

CIRCUIT COURT OPINIONS

Owner must be indebted to general contractor. —

In five consolidated actions by subcontractors to perfect mechanic’s liens, a property owner’s plea in bar was granted relying on an affirmative defense under §§ 43-7 and 43-11 that the owner was not indebted to the general contractor where the owner’s obligation to pay the general contractor depended upon financing and, although it made great efforts, the owner was unable to secure financing. W.O. Grubb Steel Erection, Inc. v. 515 Granby, L.L.C., 78 Va. Cir. 463, 2009 Va. Cir. LEXIS 185 (Norfolk Aug. 14, 2009).

Subcontractor did not need to file certification of mailing. —

Lien held invalid. —

Mechanic’s lien was invalid where the last sentence of subsection A of § 43-7 permitted, but did not require, the developer to present its lack of indebtedness claim as an affirmative defense to a suit to perfect the subcontractor’s lien, and the developer had presented its lack of indebtedness via a separate § 43-17.1 petition. Leesburg Bldg. Partners, LLC v. Mike Berger Inc., 2018 Va. Cir. LEXIS 2476 (Loudoun County Aug. 22, 2018).

§ 43-8. Sufficiency of memorandum, affidavit and notice required by § 43-7.

The memorandum, affidavit and notice required by § 43-7 shall be sufficient if substantially in form and effect as follows:

Memorandum for Mechanic’s Lien Claimed by Subcontractor. Name of owner: Address of owner: Name of general contractor (if any): Name of claimant: Address of claimant: Contractor license or certificate number of claimant (if applicable): Issuance date of license or certificate (if applicable): Expiration date of license or certificate (if applicable): If no contractor license or certificate number is included, the claimant certifies that such a valid license or certificate is not required by law for the work done for which the benefit of a lien is claimed. 1. Type of materials or services furnished: 2. Amount claimed: $ If any part of the Amount claimed is not due as of the date of this mechanic’s lien, identify the date or event upon which it will be due and the sum(s) to which the due date(s) or event(s) apply: 3. Type of structure on which work done or materials furnished: 4. Brief description and location of real property: 5. Date from which interest on above amount is claimed: Date: It is the intent of the claimant to claim the benefit of a lien. (Name of claimant). Affidavit. State of Virginia, County (or city) of to wit: I, (notary or other officer) for the county (or city) aforesaid, do certify that , claimant, or , agent for claimant, this day made oath before me in my county (or city) aforesaid that is justly indebted to claimant in the sum of dollars, for the consideration stated in the foregoing memorandum, and that the same is payable as therein stated. Given under my hand this the day of , 20. (Notary Public or Magistrate, et cetera.) Notice. To (owner). You are hereby notified that (general contractor) is indebted to me in the sum of dollars ($) with interest thereon from the day of , 20, for work done (or materials furnished, as the case may be,) in and about the construction (or removal, etc.,) of a (describe structure, whether dwelling, store, or etc.,) which he has contracted to construct (or remove, etc.,) for you or on property owned by you in the county (or city) of , and that I have duly recorded a mechanic’s lien for the same. Given under my hand this the day of , 20. (Subcontractor).

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History. Code 1919, § 6428; 1968, c. 568; 2007, c. 504; 2013, c. 293; 2019, c. 243.

The 2007 amendments.

The 2007 amendment by c. 504 inserted “It is the intent of the claimant to claim the benefit of a lien” following Item 5.

The 2013 amendments.

The 2013 amendment by c. 293 added the language beginning “Contractor license or certificate number of claimant” and ending “which the benefit of a lien is claimed” preceding item 1.

The 2019 amendments.

The 2019 amendment by c. 243 inserted the second paragraph of subdivision 2.

Law Review.

For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

For survey on creditors’ rights in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989).

Research References.

Virginia Forms (Matthew Bender). No. 6-506 Memorandum for Mechanic’s Lien by Subcontractor.

CASE NOTES

Relation back of perfection may defeat rights of bankruptcy trustee. —

So long as state law permits a relation-back type of perfection which would defeat an intervening lien creditor, 11 U.S.C. § 546(b) allows the creditor to perfect and allows the relation-back feature to defeat the rights of the bankruptcy trustee. The Virginia mechanics’ lien statutes allow for such a relation back. H.T. Bowling, Inc. v. Bain, 52 Bankr. 58, 1985 Bankr. LEXIS 5430 (Bankr. W.D. Va. 1985), aff'd in part and rev'd in part, 64 Bankr. 581, 1986 U.S. Dist. LEXIS 26191 (W.D. Va. 1986).

CIRCUIT COURT OPINIONS

Claimant not properly identified. —

In a mechanic’s lien dispute, a demurrer was granted because a memorandum attached to a complaint was not substantially in the form and effect as provided in this statute since it did not properly identify the claimant. It identified the claimant as a company, and then later as an individual. G.H. Watts Constr., Inc. v. Cornerstone Builders, LLC, 95 Va. Cir. 121, 2017 Va. Cir. LEXIS 30 (Hanover County Jan. 27, 2017).

§ 43-9. Perfection of lien by person performing labor or furnishing materials for a subcontractor; extent of lien.

Any person performing labor or furnishing materials for a subcontractor, in order to perfect the lien given him by § 43-3 , shall comply with the provisions of § 43-4 , and in addition thereto give notice in writing to the owner of the property, or his agent, and to the general contractor, or his agent, of the amount and character of his claim. But the amount for which a lien may be perfected by such person shall not exceed the amount for which such subcontractor could himself claim a lien under § 43-7 .

History. Code 1919, § 6429.

Law Review.

For survey of Virginia commercial law for the year 1970-1971, see 57 Va. L. Rev. 1527 (1971).

for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

For survey of Virginia commercial law for the year 1977-1978, see 64 Va. L. Rev. 1383 (1978).

For review of judicial decisions of significance in Virginia affecting construction law, see 43 U. Rich. L. Rev. 107 (2008).

Research References.

Virginia Forms (Matthew Bender). No. 6-508 Memorandum for Mechanic’s Lien by Sub-subcontractor; No. 6-509 Memorandum for Mechanic’s Lien by Sub-Subcontractor — Preprinted Form.

CASE NOTES

The language of this section is plain and unambiguous, and its meaning reasonably clear. John T. Wilson Co. v. McManus, 162 Va. 130 , 173 S.E. 361 , 1934 Va. LEXIS 241 (1934).

Sub-subcontractors are placed on same basis as subcontractors. —

By this section the legislature has placed those who under agreement with a subcontractor perform work or furnish material used in the building on the same basis as a subcontractor. John T. Wilson Co. v. McManus, 162 Va. 130 , 173 S.E. 361 , 1934 Va. LEXIS 241 (1934).

Lien must be filed within time prescribed by § 43-4 . —

A claim of mechanics’ lien filed by a sub-subcontractor more than 60 days after work on a building has terminated and the owner has accepted it, and settled with the general contractor, comes too late. The filing of the claim within the time prescribed by § 43-4 is one of the essential requisites in perfecting the lien. If not so filed no lien is acquired. Furst-Kerber Cut Stone Co. v. Wells, 116 Va. 95 , 81 S.E. 22 , 1914 Va. LEXIS 12 (1914).

General contractor must be indebted to subcontractor. —

By virtue of the last sentence of this section, one furnishing materials or performing labor for a subcontractor is not entitled to lien unless the general contractor is indebted at the time the notice is served, or thereafter becomes indebted, to the subcontractor under the contract. John T. Wilson Co. v. McManus, 162 Va. 130 , 173 S.E. 361 , 1934 Va. LEXIS 241 (1934).

Under this section, the “owner” is the same person who is referred to in § 43-4 . Wallace v. Brumback, 177 Va. 36 , 12 S.E.2d 801, 1941 Va. LEXIS 194 (1941).

Mechanics’ liens cannot be perfected against public buildings and other public improvements. Thomas Somerville Co. v. Broyhill, 200 Va. 358 , 105 S.E.2d 824, 1958 Va. LEXIS 196 (1958).

Effect of failure to perfect lien. —

If a materialman fails to perfect a mechanics’ lien on the building into which his materials are placed, the amount due him therefor by a subcontractor is a general unsecured debt due to the materialman, and upon the bankruptcy of the subcontractor, the amount due him by the general contractor passes to his trustee as assets of the bankrupt. Furst-Kerber Cut Stone Co. v. Wells, 116 Va. 95 , 81 S.E. 22 , 1914 Va. LEXIS 12 (1914).

Relation back of perfection may defeat rights of bankruptcy trustee. —

So long as state law permits a relation-back type of perfection which would defeat an intervening lien creditor, 11 U.S.C. § 546(b) allows the creditor to perfect and allows the relation-back feature to defeat the rights of the bankruptcy trustee. The Virginia mechanics’ lien statutes allow for such a relation back. H.T. Bowling, Inc. v. Bain, 52 Bankr. 58, 1985 Bankr. LEXIS 5430 (Bankr. W.D. Va. 1985), aff'd in part and rev'd in part, 64 Bankr. 581, 1986 U.S. Dist. LEXIS 26191 (W.D. Va. 1986).

§ 43-10. Sufficiency of memorandum, affidavit and notice required by § 43-9.

The memorandum, affidavit and notice required by § 43-9 shall be sufficient if substantially in form and effect as follows:

Memorandum for Mechanic’s Lien Claimed by Sub-subcontractor. Name of owner: Address of owner: Name of general contractor (if any) and subcontractor: Name of claimant: Address of claimant: Contractor license or certificate number of claimant (if applicable): Issuance date of license or certificate (if applicable): Expiration date of license or certificate (if applicable): If no contractor license or certificate number is included, the claimant certifies that such a valid license or certificate is not required by law for the work done for which the benefit of a lien is claimed. 1. Type of materials or services furnished: 2. Amount claimed: $ If any part of the Amount claimed is not due as of the date of this mechanic’s lien, identify the date or event upon which it will be due, and the sum(s) to which the due date(s) or event(s) apply: 3. Type of structure on which work done or materials furnished: 4. Brief description and location of real property: 5. Date from which interest on above amount is claimed: Date: It is the intent of the claimant to claim the benefit of a lien. (Name of claimant). (Signature of claimant or agent for claimant). Affidavit. State of Virginia, County (or city) of , to wit: I, (notary or other officer) for the county (or city) aforesaid do certify that claimant, or , agent for claimant, this day made oath before me in my county (or city) aforesaid that is justly indebted to claimant in the sum of dollars for the consideration stated in the foregoing memorandum, and that the same is payable as therein stated. Given under my hand this the . . . . . . . . . . . . . . . . day of . . . . . . . . . . . . . . ., 20. . . . (Notary Public or Magistrate, et cetera.) Notice. To (owner) and (general contractor): You are hereby notified that , a subcontractor under you, said (general contractor) for the construction (or removal, etc.,) of a (describe structure) for you, or on property owned by you, said (owner) is indebted to me in the sum of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dollars ($ ) with interest thereon from the . . . . day of . . . . . . ., 20. . ., for work done (or materials furnished) in and about the construction (or removal, etc.,) of (naming structure), situate in the county (or city) of Virginia, and that I have duly recorded a mechanic’s lien for the same. Given under my hand this the . . . . . . . . . . . . . . . . . . day of . . . . . . . . . . . . . . ., 20. . . . . . . (Sub-subcontractor).

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History. Code 1919, § 6429; 1968, c. 568; 1984, c. 647; 2007, c. 504; 2013, c. 293; 2019, c. 243.

The 2007 amendments.

The 2007 amendment by c. 504 inserted “It is the intent of the claimant to claim the benefit of a lien” following Item 5.

The 2013 amendments.

The 2013 amendment by c. 293 added the language beginning “Contractor license or certificate number of claimant” and ending “which the benefit of a lien is claimed” preceding item 1.

The 2019 amendments.

The 2019 amendment by c. 243 inserted the second paragraph of subdivision 2.

Law Review.

For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

For survey on creditors’ rights in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989).

CASE NOTES

Relation back of perfection may defeat rights of bankruptcy trustee. —

§ 43-11. How owner or general contractor made personally liable to subcontractor, laborer or materialman.

Any subcontractor or person furnishing labor or material to the general contractor or subcontractor, may give a preliminary notice in writing to the owner or his agent or the general contractor, stating the nature and character of his contract and the probable amount of his claim.
Additionally, if such subcontractor, or person furnishing labor or material shall at any time after the work is done or material furnished by him and before the expiration of thirty days from the time such building or structure is completed or the work thereon otherwise terminated furnish the owner thereof or his agent and also the general contractor, or the general contractor alone in case he is the only one notified, with a second notice stating a correct account, verified by affidavit, of his actual claim against the general contractor or subcontractor, for work done or materials furnished and of the amount due, then the owner, or the general contractor, if he alone was notified, shall be personally liable to the claimant for the actual amount due to the subcontractor or persons furnishing labor or material by the general contractor or subcontractor, provided the same does not exceed the sum in which the owner is indebted to the general contractor at the time the second notice is given or may thereafter become indebted by virtue of his contract with the general contractor, or in case the general contractor alone is notified the sum in which he is indebted to the subcontractor at the time the second notice is given or may thereafter become indebted by virtue of his contract with the general contractor. But the amount which a person supplying labor or material to a subcontractor can claim shall not exceed the amount for which such subcontractor could file his claim.
Any bona fide agreement for deductions by the owner because of the failure or refusal of the general contractor to comply with his contract shall be binding upon such subcontractor, laborer or materialman.
The provisions of this section are subject to the qualification that before any such personal liability of the owner or general contractor herein provided for shall be binding the two notices herein required, with such returns thereon as is sufficient under § 8.01-325 , shall be recorded and indexed as provided in § 43-4.1 in the appropriate clerk’s office; or the two notices herein required shall be mailed by registered or certified mail to and received by the owner or general contractor upon whom personal liability is sought to be imposed, and a return receipt therefor showing delivery to the addressee shall be prima facie evidence of receipt.

History. 1924, p. 658; Michie Code 1942, § 6429a; 1968, c. 568; 2002, c. 772.

The 2002 amendments.

The 2002 amendment by c. 772 inserted the subdivision 1 to 4 designations; in subdivision 1, inserted “a preliminary” preceding “notice,” and deleted “and” at the end; in the first sentence of subdivision 2, inserted “Additionally” at the beginning, inserted “a second notice stating” preceding “a correct account,” inserted “actual” preceding “claim against,” inserted “then” preceding “the owner, or the general contractor,” inserted “actual” preceding “amount due,” and twice inserted “second” preceding “notice”; and in subdivision 4, twice substituted “two notices” for “notice,” and substituted “returns” for “return” preceding “thereon.”

Law Review.

For survey of Virginia commercial law for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

Michie’s Jurisprudence.

For related discussion, see 3A M.J. Building Contracts, § 20.

CASE NOTES

This section must be construed in connection with §§ 43-19 through 43-21 . DeWitt v. Coffey, 150 Va. 365 , 143 S.E. 710 , 1928 Va. LEXIS 319 (1928).

There is no conflict between this section and §§ 43-19 through 43-21 . DeWitt v. Coffey, 150 Va. 365 , 143 S.E. 710 , 1928 Va. LEXIS 319 (1928).

This section is not exclusive. —

The subcontractor can, by mutual agreement with the owner, still have the latter guarantee his account, and if the owner does so, he is entitled to deduct the amount so guaranteed from the contract price, both as against the general contractor and the other subcontractors. This rule applies especially when it is reasonably necessary to do so in order to complete the building, and this is true even when it would result in a preference of one subcontractor over another. Nicholas v. Miller, 182 Va. 831 , 30 S.E.2d 696, 1944 Va. LEXIS 239 (1944).

Laborers and materialmen may obtain additional security in three ways. —

Laborers and materialmen unwilling to extend credit to a general contractor may obtain additional security: (1) by taking the steps prescribed by this section to fasten personal responsibility upon the owner; (2) by filing separate and independent liens under § 43-7 ; (3) by taking advantage of a lien perfected by the general contractor. Coleman v. Pearman, 159 Va. 72 , 165 S.E. 371 , 1932 Va. LEXIS 175 (1932).

The methods open to materialmen for obtaining additional security for their claims out of the funds due or to become due under a building contract are: (1) by taking the steps prescribed in this section to fasten personal liability upon the owner; (2) by filing separate and independent liens under § 43-9 ; and (3) by taking advantage of a lien perfected by the general contractor. Perrin & Martin, Inc. v. United States, 233 F. Supp. 1016, 1964 U.S. Dist. LEXIS 9654 (E.D. Va. 1964).

Deduction of obligation owner required to incur to complete building. —

While it is true that under this section the owner, under certain conditions, may be made personally liable to a subcontractor, yet this liability is not permitted to exceed the sum in which the owner is indebted to the general contractor at the time he receives notice of the mechanics’ lien, and such indebtedness excludes the obligation the owner may have been required to incur in order to complete the building, so that what remains in the owner’s hands after deducting such an obligation is applicable to the liens of the subcontractors, under this section. Nicholas v. Miller, 182 Va. 831 , 30 S.E.2d 696, 1944 Va. LEXIS 239 (1944)See § 43-16 .

CIRCUIT COURT OPINIONS

Owner must be indebted to general contractor. —

Failure to file lien. —

Because a subcontractor established the trifecta of quantum meruit elements, and because a decision on the issue of equitable preclusion regarding the subcontractor’s failure to timely file a mechanic’s lien in accordance with § 43-11 was premature, the owner’s demurrer was overruled. Gutterman Iron & Metal Corp. v. Figg Bridge Developers, L.L.C., 82 Va. Cir. 304, 2011 Va. Cir. LEXIS 178 (Chesapeake Mar. 1, 2011).

§ 43-12. Repealed by Acts 1968, c. 568.

§ 43-13. Funds paid to general contractor or subcontractor must be used to pay persons performing labor or furnishing material.

Any contractor or subcontractor or any officer, director or employee of such contractor or subcontractor who shall, with intent to defraud, retain or use the funds, or any part thereof, paid by the owner or his agent, the contractor, or the lender to such contractor or by the owner or his agent, the contractor, or the lender to a subcontractor under any contract for the construction, removal, repair, or improvement of any building or structure permanently annexed to the freehold for any other purpose than to pay persons performing labor upon or furnishing material for such construction, repair, removal, or improvement is guilty of larceny in appropriating such funds for any other use while any amount for which the contractor or subcontractor may be liable or become liable under his contract for such labor or materials remains unpaid and may be prosecuted upon complaint of any person or persons who have not been fully paid any amount due them.

The use by any such contractor or subcontractor or any officer, director, or employee of such contractor or subcontractor of any moneys paid under the contract before paying all amounts due or to become due for labor performed or material furnished for such building or structure for any other purpose than paying such amounts due on the project shall be prima facie evidence of intent to defraud. Any breach or violation of this section may give rise to a civil cause of action for a party in contract with the general contractor or subcontractor, as appropriate; however, this right does not affect a contractor’s or subcontractor’s right to withhold payment for failure to properly perform labor or furnish materials on the project. Any contract or subcontract provision that allows a contracting party to withhold funds due under one contract or subcontract for alleged claims or damages due on another contract or subcontract is void as against public policy.

History. 1932, p. 483; Michie Code 1942, § 6429b; 1968, c. 568; 1980, c. 390; 1982, c. 391; 1992, c. 713; 1998, c. 754; 2020, c. 873.

The 1998 amendment, in the first paragraph, substituted “contractor or subcontractor” for “contractor, subcontractor” in three places, deleted “or owner-developer, as defined in § 54.1-1100 ” preceding “or any officer,” and deleted “or owner-developer” preceding “who shall, with intent,” deleted “or owner-developer” preceding “or by the owner,” deleted “or owner developer” preceding “may be liable”; and in the second paragraph, substituted “contractor or subcontractor” for “contractor, subcontractor” in two places, and deleted “or owner-developer” following “contractor or subcontractor” in two places.

The 2020 amendments.

The 2020 amendments by c. 873, in the first paragraph, substituted “the lender” for “lender” twice and “is guilty” for “shall be guilty”; in the second paragraph, inserted “due on the project” and added the last two sentences; and made stylistic changes.

Law Review.

For survey of Virginia commercial law for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

Research References.

Virginia Forms (Matthew Bender). No. 16-4007 Owner’s and Contractor’s Affidavit and Waiver and Release of Liens for Construction in Progress; Nos. 16-4008 et seq.

Michie’s Jurisprudence.

For related discussion, see 2B M.J. Bankruptcy, §§ 132, 135.

CASE NOTES

Object of section. —

This section has for its object additional protection and security to subcontractors, laborers, or materialmen furnishing labor or material for work undertaken by the contractor, as well as to relieve the owner of claims, liens, and litigation. Overstreet v. Commonwealth, 193 Va. 104 , 67 S.E.2d 875, 1951 Va. LEXIS 244 (1951).

This section was enacted in the exercise of the police power, in that its object is the prevention of fraud, and it becomes a part of every contract covered by its terms. Overstreet v. Commonwealth, 193 Va. 104 , 67 S.E.2d 875, 1951 Va. LEXIS 244 (1951).

The object of this section is to prevent the misappropriation of funds, and it is not designed to imprison for debt. Overstreet v. Commonwealth, 193 Va. 104 , 67 S.E.2d 875, 1951 Va. LEXIS 244 (1951).

The purpose of this section is not for collection of the debt but punishment for the fraud. Salecki v. Virginia, 51 Bankr. 364, 1985 Bankr. LEXIS 5767 (Bankr. E.D. Va. 1985).

This section does not expressly provide for any private right of action imposing civil liability, and a private right of action cannot be implied by the provisions of this section. Vansant & Gusler, Inc. v. Washington, 245 Va. 356 , 429 S.E.2d 31, 9 Va. Law Rep. 1177, 1993 Va. LEXIS 72 (1993).

This section is a criminal statute. This statute extends the definition of larceny in Virginia beyond the traditional common law meaning. Specifically, this section determines that a contractor’s use of funds for a purpose other than to pay the provider of materials is prima facie evidence of larceny. The purpose of the statute is to punish fraud; prosecution of a contractor for violating this code section does not affect the debt itself. Builders Supply Co. v. Lane, 115 Bankr. 81, 1990 Bankr. LEXIS 1250 (Bankr. E.D. Va. 1990).

This section does not interfere with the liberty to contract, since contractors enter into their engagements with the knowledge of the statute just as they enter into their engagements with the knowledge of other statutes relating to mechanics’ and materialmen’s liens. Overstreet v. Commonwealth, 193 Va. 104 , 67 S.E.2d 875, 1951 Va. LEXIS 244 (1951).

It is the intent to defraud and not the indebtedness which is made the determining feature in establishing guilt under this section. Overstreet v. Commonwealth, 193 Va. 104 , 67 S.E.2d 875, 1951 Va. LEXIS 244 (1951); Perrin & Martin, Inc. v. United States, 233 F. Supp. 1016, 1964 U.S. Dist. LEXIS 9654 (E.D. Va. 1964).

A prosecution under this section does not affect the debt owed by the contractor. Overstreet v. Commonwealth, 193 Va. 104 , 67 S.E.2d 875, 1951 Va. LEXIS 244 (1951).

Intent of second paragraph. —

The second paragraph of this section was intended to relieve the Commonwealth from the necessity of producing further specific proof of intent to defraud, when circumstances reveal personal use of moneys paid under contract by the contractor. Overstreet v. Commonwealth, 193 Va. 104 , 67 S.E.2d 875, 1951 Va. LEXIS 244 (1951).

Former penalty provisions construed. —

See Overstreet v. Commonwealth, 193 Va. 104 , 67 S.E.2d 875, 1951 Va. LEXIS 244 (1951).

Interpretation of civil statutes not changed by Overstreet v. Commonwealth. —

Overstreet v. Commonwealth, 193 Va. 104 , 67 S.E.2d 875 (1951), does not, by the application of a criminal statute, change the Supreme Court’s interpretation of civil statutes governing the relationship of subcontractors and materialmen. Perrin & Martin, Inc. v. United States, 233 F. Supp. 1016, 1964 U.S. Dist. LEXIS 9654 (E.D. Va. 1964).

Funds not held in trust. —

Funds retained by a contractor from payments made by the owner and owing to the subcontractors are not held in trust for the benefit of the subcontractors. Glen Constr. Co. v. Bank of Vienna, 410 F. Supp. 402, 1976 U.S. Dist. LEXIS 15749 (E.D. Va. 1976), rev'd, 557 F.2d 1050, 1977 U.S. App. LEXIS 12629 (4th Cir. 1977).

While this criminal statute creates a moral obligation, it contains no language creating a legal trust for the benefit of materialmen and laborers. Nor does it purport to affect or extend the rights and remedies otherwise available in a civil proceeding to materialmen and workmen under the mechanics’ lien statutes. Kayhoe Constr. Corp. v. United Va. Bank, 220 Va. 285 , 257 S.E.2d 837, 1979 Va. LEXIS 261 (1979).

Therefore, a general contractor would not be entitled under a trust theory to recovery on behalf of two unpaid suppliers of a subcontractor of payments received by the subcontractor as partial payments to the suppliers but paid by the subcontractor to the bank. Kayhoe Constr. Corp. v. United Va. Bank, 220 Va. 285 , 257 S.E.2d 837, 1979 Va. LEXIS 261 (1979).

Bankruptcy court refused to enjoin a prosecution under this section against a debtor, where the court was unable to conclude that the Commonwealth was using a criminal proceeding to compel payment of a debt discharged in bankruptcy. Salecki v. Virginia, 51 Bankr. 364, 1985 Bankr. LEXIS 5767 (Bankr. E.D. Va. 1985).

Where criminal action under this section is instituted some time prior to filing of bankruptcy petition, a rational conclusion may be reached that its purpose was not to force collection of the debt. Where the criminal action is instituted at approximately the same time the rationalization is less clear and not as compelling. Salecki v. Virginia, 51 Bankr. 364, 1985 Bankr. LEXIS 5767 (Bankr. E.D. Va. 1985).

Larceny found. —

Evidence was sufficient to support defendant’s conviction for larceny because it was defendant’s duty, as a general contractor retained to build a home, to use the funds received by defendant from the buyers of the home for the payment of subcontractor and supplier accounts before using them for any other purpose. However, defendant’s failure to provide an accounting for the funds that the buyers paid defendant constituted prima facie evidence of intent to defraud, but defendant was unable to produce evidence to the contrary. Holloway v. Commonwealth, 2014 Va. App. LEXIS 109 (Va. Ct. App. Mar. 25, 2014).

Larceny not found. —

Although a debtor received payment from construction projects but failed to distribute the funds to subcontractors and laborers, he received the funds lawfully under contract, which did not constitute federal common-law larceny; for purposes of 11 U.S.C.S. § 523(a)(4), whether larceny exists is a matter of federal law and not with debtor’s failure to comply with this section, the debt is therefore dischargeable. Smith Mountain Building Supply, LLC v. Shreve, 386 Bankr. 602, 2008 Bankr. LEXIS 1140 (Bankr. W.D. Va. 2008).

Because the Commonwealth conceded that the evidence of an intent to defraud was insufficient to sustain defendant’s conviction of obtaining goods by false pretenses in violation of § 43-13 , there had to be a concession that the evidence was insufficient to prove the conviction of conspiracy to commit a felony in violation of § 18.2-22 ; both required the intent to defraud, and the conspiracy alleged and tried was a conspiracy to violate § 18.2-178 , and not a conspiracy to violate § 43-13 . Hinote v. Commonwealth, 2011 Va. App. LEXIS 362 (Va. Ct. App. Nov. 22, 2011).

Defendant’s conviction for obtaining goods by false pretenses, §§ 18.2-178 and 43-13 , was reversed because the Commonwealth properly conceded that the evidence did not show that defendant intended to defraud when obtaining building materials from a builders supply company; to prove larceny by false pretenses, the intent to defraud had to exist when the property was obtained, and that could not happen based on the inference upon which the Commonwealth relied. Hinote v. Commonwealth, 2011 Va. App. LEXIS 362 (Va. Ct. App. Nov. 22, 2011).

§ 43-13.1. Use of lien waiver form; forgery or signing without authority.

Any person who knowingly presents a waiver of lien form to an owner, his agent, contractor, lender, or title company for the purpose of obtaining funds or title insurance and who forges or signs without authority the name of any person listed thereon shall be guilty of a felony and punished as provided in § 18.2-172 .

History. 1968, c. 568.

§ 43-13.2. When an affidavit or a signed statement of payment required of owner prior to sale.

A person who is both the owner of a one- or two-family residential dwelling unit and either a developer of such property, a contractor in connection with the development or improvement of such property or a contractor or subcontractor furnishing labor or material in connection with the development or improvement of such property shall, at the time of settlement on the sale of such property, provide the purchaser with an affidavit or a signed statement attested to by a witness stating either (i) that all persons performing labor or furnishing materials in connection with the improvements on such property and with whom such owner is in privity of contract have been paid in full or (ii) the name, address and amount payable or claimed to be payable to any person so performing labor or furnishing materials and with whom such owner is in privity of contract. Willful failure to provide such statement or any willful material misrepresentation with respect to such a statement which causes a monetary loss to a financial institution, title company, contractor, subcontractor, supplier, owner, mechanics’ lien agent or any other person or institution shall be punishable as a Class 5 felony.

History. 1992, cc. 779, 787; 2003, c. 400.

Cross references.

As to punishment for Class 5 felonies, see § 18.2-10 .

The 2003 amendments.

The 2003 amendment by c. 400 inserted “or a signed statement attested to by a witness” in the first sentence.

Research References.

Virginia Forms (Matthew Bender). No. 16- 4012 Owner’s Affidavit and Indemnity for Posted Project.

§ 43-13.3. An affidavit or a signed statement of payment required of owner prior to sale or refinance; penalty.

Any person who is the owner of a one- or two-family residential dwelling unit not included within the scope of § 43-13.2 shall, at the time of settlement on the sale of such property, provide the purchaser, or lender in the case of a permanent loan or refinance, with an affidavit or a signed statement attested to by a witness stating either (i) that all persons performing labor or furnishing materials in connection with any improvements on such property within 120 days prior to the date of settlement and with whom such owner is in privity of contract have been paid in full, or (ii) the name, address and amount payable or claimed to be payable to any person so performing labor or furnishing materials and with whom such owner is in privity of contract. Any willful material misrepresentation in the affidavit or signed statement attested to by a witness which causes a monetary loss to any financial institution, title company, or purchaser shall be punishable as a Class 3 misdemeanor.

History. 1994, c. 388; 2003, c. 400.

Cross references.

As to punishment for Class 3 misdemeanors, see § 18.2-11 .

The 2003 amendments.

The 2003 amendment by c. 400, in the first sentence, deleted “family” following “one-,” and inserted “or a signed statement attested to by a witness”; and inserted “or signed statement attested to by a witness” in the last sentence.

Research References.

Virginia Forms (Matthew Bender). No. 16-4014 Owner’s Affidavit as to Mechanic’s Liens and Possession (123-Day Letter); No. 16-4016 Owner’s Affidavit Pursuant to § 43-13.3 .

§ 43-14. Repealed by Acts 1968, c. 568.

§ 43-14.1. Service of notices.

Any notice authorized or required by this chapter, except the notice required by § 43-11 , may be served by any sheriff or constable who shall make return of the time and manner of service; or any such notice may be served by certified or registered mail and a return receipt therefor shall be prima facie evidence of receipt.

History. 1968, c. 568; 1971, Ex. Sess., c. 155.

Research References.

Virginia Forms (Matthew Bender). No. 6-506 Memorandum for Mechanic’s Lien by Subcontractor.

CASE NOTES

For injunction against state criminal proceedings under this section to issue, extraordinary circumstances must be present, such as where injunction is necessary in aid of a court’s jurisdiction or to effect or protect judgments; situations when an individual facing prosecution in state court can prove he will suffer irreparable damages, i.e., where “. . . the danger of irreparable loss is both great and immediate . . .”; or, finally, where the threat to the plaintiff’s federally protected rights cannot be eliminated by his defense against a single criminal prosecution. Bratten v. Sciortino, 55 Bankr. 577, 1985 Bankr. LEXIS 4863 (Bankr. E.D. Va. 1985).

§ 43-15. Inaccuracies in memorandum or description not affecting lien.

No inaccuracy in the memorandum filed, or in the description of the property to be covered by the lien, shall invalidate the lien, if the property can be reasonably identified by the description given and the memorandum conforms substantially to the requirements of §§ 43-5 , 43-8 and 43-10 , respectively, and is not wilfully false.

History. Code 1919, § 6431.

Law Review.

For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

CASE NOTES

Purpose of the description is to enable an owner, purchaser, or creditor to identify the property on which the lien is claimed. Penrod & Stauffer Bldg. Sys. v. Metro Printing & Mailing Servs., Inc., 229 Va. 150 , 326 S.E.2d 662, 1985 Va. LEXIS 186 (1985).

Defects not mentioned in this section are not cured. —

The legislature in this section having designated but two defects that could be disregarded, it would seem that, under the doctrine of inclusio unius, exclusio alterius, it intended that defects not mentioned were to be regarded. Clement v. Adams Bros.-Paynes Co., 113 Va. 546 , 75 S.E. 294 (1912).

Duty to place lien only upon property worked and no more. —

Substantial compliance is essential. —

To obtain the benefit of this section the provisions of §§ 43-5 , 43-8 and 43-10 must be substantially complied with. H.N. Francis & Co. v. Hotel Rueger, Inc., 125 Va. 106 , 99 S.E. 690 , 1919 Va. LEXIS 12 (1919).

By this section a substantial compliance is declared to be sufficient, but nothing less than a substantial compliance will answer. Gilman v. Ryan, 95 Va. 494 , 28 S.E. 875 , 1898 Va. LEXIS 5 (1898).

Determining substantial compliance. —

This section not applicable where the lien is invalid and unenforceable. —

CIRCUIT COURT OPINIONS

Work description inaccuracy. —

OPINIONS OF THE ATTORNEY GENERAL

Notice requirements. —

§ 43-16. What owner may do when contractor fails or refuses to complete building, etc.

If the owner is compelled to complete his building, structure, or railroad, or any part thereof undertaken by a general contractor in consequence of the failure or refusal of the general contractor to do so, the amount expended by the owner for such completion shall have priority over all mechanics’ liens which have been or may be placed on such building, structure, or railroad by such general contractor, a subcontractor under him, or any person furnishing labor or materials to either of them.

History. Code 1919, § 6432.

CASE NOTES

The legislative intent implicit in this section is to permit an owner who has not completed a building project that has been abandoned by a defaulting contractor to set off against withheld funds the cost of completion. Henderson & Russell Assocs. v. Warwick Shopping Center, Inc., 217 Va. 486 , 229 S.E.2d 878, 1976 Va. LEXIS 309 (1976).

Owner’s right does not depend upon contract. —

Independent of any contract stipulation, the owner may supply any deficiencies in the performance of agreements in a building contract and deduct the cost from any money due or to become due to the contractor, and under this section the owner has this right as against mechanics’ liens. Thomas & Co. v. McCauley, 143 Va. 451 , 130 S.E. 396 , 1925 Va. LEXIS 280 (1925).

Amount guaranteed by owner to subcontractor to complete building has priority. —

If a subcontractor is unwilling to continue his work on the building because of the credit standing of the general contractor, under this section the owner may complete the building, and may obligate himself to the subcontractor to do so, in order that the work may go on, and the amount for which the owner is required to so obligate himself takes priority over all other mechanics’ liens. Nicholas v. Miller, 182 Va. 831 , 30 S.E.2d 696, 1944 Va. LEXIS 239 (1944); Anderson v. White, 183 Va. 302 , 32 S.E.2d 72, 1944 Va. LEXIS 154 (1944).

Surety who completes contract does not take priority over lienors. —

Where a surety under its contract of suretyship, upon default of its principal, a building contractor, completes the contract, the surety’s relation to the owner is identical with that of the original contractor, and in such a case it is the right as well as the duty of the owner to prevent any diversion of the funds from those who had perfected statutory liens upon the structure. Their right to have their liens discharged out of the unpaid balance in the hands of the owner is as clear against the surety as it would have been against the contractor principal. Electric Transmission Co. v. Pennington Gap Bank, Inc., 137 Va. 94 , 119 S.E. 99 , 1923 Va. LEXIS 140 (1923).

For he succeeds to rights of contractor, not owner. —

A surety succeeds to the rights of the contractor, and it cannot consistently be held that he at the same time succeeds to the rights of the owner, to use the balance due and to become due on the contract by it for the completion of the structure according to the contract, to the exclusion of mechanics’ liens, as the interest of the surety as the successor of the contractor is adverse to the interest of the owner. Electric Transmission Co. v. Pennington Gap Bank, Inc., 137 Va. 94 , 119 S.E. 99 , 1923 Va. LEXIS 140 (1923).

Owner must adduce evidence as to cost of completion. —

In order for an owner to take advantage of the provisions of this section, he must adduce evidence as to the cost of completion, whether or not the building has been completed. Henderson & Russell Assocs. v. Warwick Shopping Center, Inc., 217 Va. 486 , 229 S.E.2d 878, 1976 Va. LEXIS 309 (1976).

The burden is on the owner to go forward with the evidence and show what claims, if any, he has against the remaining fund. If the owner completes the building and shows that the cost of doing so has exhausted the fund, the liens of the subcontractors would be wiped out under the express terms of this section. But where the owner did not complete the building and did not offer any evidence as to the cost of completion, there was no evidence that the owner had any setoff or counterclaims against the funds which he was withholding from the general contractor. In the absence of such evidence the lower court correctly held that the owner was indebted to the general contractor in a sum exceeding the aggregate amount of the subcontractors’ claims. Knight v. Ferrante, 202 Va. 243 , 117 S.E.2d 283, 1960 Va. LEXIS 213 (1960).

Equitable interest must be recorded. —

The mechanics’ lien statutes and the recording statutes must be read together, with the result that the owner of an equitable interest is protected by this section only if the contract or other document evidencing his interest is recorded. Where owner of equitable interest did not record her contract before mechanics’ lien was filed, she was not eligible for the priority granted by this section. E.E. Stump Well Drilling, Inc. v. Willis, 230 Va. 445 , 338 S.E.2d 841, 1986 Va. LEXIS 144 (1986).

§ 43-17. Limitation on suit to enforce lien.

No suit to enforce any lien perfected under §§ 43-4 , 43-5 and 43-7 to 43-10 shall be brought after six months from the time when the memorandum of lien was recorded or after sixty days from the time the building, structure or railroad was completed or the work thereon otherwise terminated, whichever time shall last occur; provided, however, that the filing of a petition to enforce any such lien in any suit wherein such petition may be properly filed shall be regarded as the institution of a suit under this section; and, provided further, that nothing herein shall extend the time within which such lien may be perfected.

History. Code 1919, § 6433; 1926, p. 43; 1956, c. 399.

Cross references.

As to limitation of actions generally, see §§ 8.01-228 through 8.01-256 .

CASE NOTES

Perfection statute contrasted with enforcement statutes. —

A lien created by § 43-3 is one in derogation of the common law. Once perfected in accordance with § 43-4 , the lien can be enforced by suit brought as provided in this section and § 43-22 . In Virginia provisions of the enforcement statutes are to be construed liberally while the requirements of the perfection statute are to be construed strictly. American Std. Homes Corp. v. Reinecke, 245 Va. 113 , 425 S.E.2d 515, 9 Va. Law Rep. 776, 1993 Va. LEXIS 5 (1993).

Expiration of right. —

Where a statute creates a right unknown at common law and makes a time limitation the essence of the right as well as a constriction upon the remedy, the right expires upon the expiration of the limitation; and the expiration of the right is an absolute defense which can be asserted either by demurrer or by plea of the statute of limitations. Neff v. Garrard, 216 Va. 496 , 219 S.E.2d 878, 1975 Va. LEXIS 320 (1975).

The filing of a mechanic’s lien is a judicial proceeding entitling filer to an absolute privilege against slander. Donohoe Constr. Co. v. Mount Vernon Assocs., 235 Va. 531 , 369 S.E.2d 857, 4 Va. Law Rep. 3040, 1988 Va. LEXIS 80 (1988).

The mechanics’ lien itself is not self-enforcing and is extinguished unless the lienholder files a bill in equity within six months and obtains a decree against the debtor’s property. W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

Both perfection and enforcement must be timely. —

A duly perfected mechanic’s lien will be extinguished unless the suit to enforce is timely filed. Similarly, the suit to enforce will be dismissed unless there has been a timely perfection of the lien. Accordingly, both perfection and enforcement must meet the statutory requisites before a claimant can recover under the mechanic’s lien statute. Donohoe Constr. Co. v. Mount Vernon Assocs., 235 Va. 531 , 369 S.E.2d 857, 4 Va. Law Rep. 3040, 1988 Va. LEXIS 80 (1988).

Section applies in suit by owner to determine validity of liens. —

Where a subcontractor’s lien was barred by this section his claim could not be allowed in a suit brought by the owner of the building to determine the validity of certain claims for a mechanics’ lien, to which suit the subcontractor was a party, he not having been a party to earlier suits brought to establish mechanics’ liens, and the account of liens ordered in these suits not having been made until after his lien was barred. H.N. Francis & Co. v. Hotel Rueger, Inc., 125 Va. 106 , 99 S.E. 690 , 1919 Va. LEXIS 12 (1919).

Allegation of timely perfection of lien. —

A bill to enforce a mechanics’ lien contains a sufficient allegation that the lien was perfected before the expiration of 30 (now 90) days from the termination of the work, when it alleges that the lien was filed as provided for in §§ 43-3 and 43-4 , and the copy of the record of the lien exhibited with the bill shows a part performance within 30 (now 90) days of the recordation of the lien. Richlands Flint Glass Co. v. Hiltebeitel, 92 Va. 91 , 22 S.E. 806 , 1895 Va. LEXIS 91 (1895).

Bill to enforce lien is not part of perfection. —

Filing of a bill to enforce the mechanic’s lien within the time specified is not part of the perfection process. Virginia law as applied in a bankruptcy situation does not require the commencement of an action in order to perfect a mechanic’s lien. Therefore, an action to enforce the lien would not be exempt from the automatic stay provisions in bankruptcy. H.T. Bowling, Inc. v. Bain, 52 Bankr. 58, 1985 Bankr. LEXIS 5430 (Bankr. W.D. Va. 1985), aff'd in part and rev'd in part, 64 Bankr. 581, 1986 U.S. Dist. LEXIS 26191 (W.D. Va. 1986).

A creditor may plead the statute of limitations in a suit to enforce a mechanics’ lien. McCartney v. Tyrer, 94 Va. 198 , 26 S.E. 419 , 1897 Va. LEXIS 63 (1897); Monk v. Exposition Deepwater Pier Corp., 111 Va. 121 , 68 S.E. 280 , 1910 Va. LEXIS 13 (1910).

But the right must be barred as between the lienor and the debtor. Monk v. Exposition Deepwater Pier Corp., 111 Va. 121 , 68 S.E. 280 , 1910 Va. LEXIS 13 (1910).

Time of impleading subsequent lienors is immaterial. —

If a suit to enforce a mechanics’ lien is brought within due time against the debtor upon whose property the lien rests, the failure to implead subsequent lienors within six months does not defeat the lien so far as such encumbrances are concerned. They are proper but not necessary parties to such suits, and may be brought in at a subsequent time. Monk v. Exposition Deepwater Pier Corp., 111 Va. 121 , 68 S.E. 280 , 1910 Va. LEXIS 13 (1910).

Statute is not suspended by suit to enforce another lien. —

The institution of a suit in equity which was not a general creditors’ suit or a general creditors’ lien suit, but had for its sole object the enforcement of a mechanics’ lien and other alleged rights of the plaintiff, did not suspend the running of limitations as to another mechanics’ lienor who was not made a party and did not in any way become a party until it filed its petition to enforce its lien more than six months after the entire amount covered by its lien became due and payable. Richmond Eng'r & Mfg. Corp. v. Loth, 135 Va. 110 , 115 S.E. 774 , 1923 Va. LEXIS 5 (1923).

Unless lienor is made a party. —

A suit by a subcontractor suspends the running of limitations as to the general contractor and all claiming under him, where he is made a party and his recorded lien properly set forth in bill. Spiller v. Wells, 96 Va. 598 , 32 S.E. 46 , 1899 Va. LEXIS 107 (1899), limited, Commonwealth Mechanical Contractors, Inc. v. Standard Federal Sav. & Loan, 222 Va. 330 , 281 S.E.2d 811, 1981 Va. LEXIS 309 (1981).

Intervening petition in suit of another. —

When read together, it is clear that this section and § 43-22 require that a lienor’s intervening petition in a suit to enforce a mechanics’ lien be filed within the limitation period provided in this section. Commonwealth Mechanical Contractors v. Standard Fed. Sav. & Loan, 222 Va. 330 , 281 S.E.2d 811, 1981 Va. LEXIS 309 (1981).

Where appellant mechanics’ lienors sought to enforce their liens over two years after the filing of their memoranda of mechanics’ liens by filing intervening petitions in a pending suit by appellee lienor which named them as defendants, the trial court properly sustained appellee lienor’s demurrer to the petitions. The enforcement of appellants’ liens was barred because the intervening petitions were not filed within the limitation period set out in this section. Commonwealth Mechanical Contractors v. Standard Fed. Sav. & Loan, 222 Va. 330 , 281 S.E.2d 811, 1981 Va. LEXIS 309 (1981).

Being named as a defendant. —

Merely being named as a defendant in an enforcement action of another lienor is not the equivalent of either filing an independent suit or intervening in the suit of another; there is no relevant difference between being a named party defendant in a bill to enforce a mechanic’s lien and being a named defendant in interpleader action; neither constitutes an affirmative act on the part of the lienor to enforce its lien, and neither complies with the statutory requirements. Isle of Wight Materials Co. v. Cowling Bros., 246 Va. 103 , 431 S.E.2d 42, 9 Va. Law Rep. 1466, 1993 Va. LEXIS 98 (1993).

Necessary party. —

In a mechanic’s lien dispute, a general contractor was not a necessary party to a subcontractor’s lien enforcement action because it did not have a pecuniary interest since it was neither the principal nor the surety on the bond, and it had no ability to be awarded a judgment to be paid out from the bond. The general contractor failed to perfect its mechanic’s lien on the real estate because it did not file a “memorandum of lien” and “a certification of mailing of a copy of the memorandum of lien to the owner of the property in the county clerk’s office; the lien was lost as a result. Synchronized Constr. Servs. v. Prav Lodging, LLC, 288 Va. 356 , 764 S.E.2d 61, 2014 Va. LEXIS 155 (2014).

Being named party defendant not suit. —

Although the filing of an intervening petition in a suit filed by another lienor is the equivalent of instituting a suit under this section, being named a party defendant in a suit by a lienor is not. Commonwealth Mechanical Contractors v. Standard Fed. Sav. & Loan, 222 Va. 330 , 281 S.E.2d 811, 1981 Va. LEXIS 309 (1981).

Beneficiary of an inferior deed of trust is a necessary party in mechanic lien holder’s suit to enforce its mechanic’s lien and was required to be named as a defendant within the statutory time period; failure to do so defeats mechanic lien holder’s suit to enforce its mechanic’s lien. James T. Bush Constr. Co. v. Patel, 243 Va. 84 , 412 S.E.2d 703, 8 Va. Law Rep. 1774, 1992 Va. LEXIS 24 (1992).

Beneficiary of a superior deed of trust had substantial interest in being given opportunity to challenge lien. —

Because the proceeds from a judicial sale of property may be insufficient to satisfy both a mechanic’s lien and a deed of trust lien, the beneficiary of a superior deed of trust had a substantial interest in being given the opportunity to challenge the validity of the mechanic’s lien, or otherwise to litigate the elements of the lien. James T. Bush Constr. Co. v. Patel, 243 Va. 84 , 412 S.E.2d 703, 8 Va. Law Rep. 1774, 1992 Va. LEXIS 24 (1992).

“Payable” as used in this section obviously refers to the time when the obligation to pay is immediate, after which the debt is past due, interest runs and action may be brought. Southern Materials Co. v. Marks, 196 Va. 295 , 83 S.E.2d 353, 1954 Va. LEXIS 223 (1954).

Rule that running account falls due on date of last item held inapplicable. —

Where an account showed seven items, the last dated August 3, 1949, but complainant’s vice-president testified that this last item was due on September 1, 1949, and this was corroborated by admissions in defendant’s answer and by invoice rendered, which allowed discount if paid by August 25, the usual rule that a running account falls due on the date of its last item was inapplicable, and suit brought on February 21, 1950, was brought within the six-month period set by this section. Southern Materials Co. v. Marks, 196 Va. 295 , 83 S.E.2d 353, 1954 Va. LEXIS 223 (1954).

Bill not demurrable. —

Where the bill alleged the date on which the memorandum of lien was filed, and suit was instituted within six months of that date, the bill was not subject to demurrer on the grounds that it failed to allege compliance with this section. Blanton v. Owen, 203 Va. 73 , 122 S.E.2d 650, 1961 Va. LEXIS 223 (1961).

Perfection of a mechanics’ lien is a one-step process in Virginia. Upon the filing of a memorandum in accordance with § 43-4 , the creditor’s lien is perfected. This section is merely a statute of limitations governing the period within which a lienor must file a claim to collect on his perfected lien. H.T. Bowling, Inc. v. Bain, 64 Bankr. 581 (W.D. Va. 1986).

Filing of complaint to enforce perfected lien violated automatic stay in bankruptcy. —

The time consumed while the automatic stay afforded by the bankruptcy laws is operative does not count toward the time limits set forth in this section. Concrete Structures, Inc. v. Tidewater Crane and Rigging Co., 261 Bankr. 627, 2001 U.S. Dist. LEXIS 3675 (E.D. Va. 2001).

CIRCUIT COURT OPINIONS

Other lien claimants were proper but not necessary parties. —

In a suit to enforce a mechanics’ lien, a subcontractor’s failure to join other lien claimants within the statutory six-months limitation period for enforcement of the mechanics’ lien was not fatal to his claim pursuant to § 43-17 because those who had recorded liens were proper, but not necessary parties. Peed Plumbing, Inc. v. Freedland, 78 Va. Cir. 291, 2009 Va. Cir. LEXIS 159 (Loudoun County May 4, 2009).

Necessary parties. —

Two trustees and the lender were not necessary parties to the plumbing company’s action because the company’s lien was subject to the lien of the two trustees and the lender and therefore their interest was not likely either to be defeated or diminished by the company’s lien. Marines Plumbing, LLC v. Durbin, 101 Va. Cir. 319, 2019 Va. Cir. LEXIS 43 (Fairfax County Mar. 14, 2019).

Intervening petition in suit of another. —

Contractor’s petition to intervene in an LLC’s action against joint tenants to enforce a mechanic’s lien was denied because pursuant to 11 U.S.C.S. § 362, a bankruptcy stay extinguished the contractor’s lien as to the entire ownership until the bankruptcy stay was lifted, and the filing of the lien memorandum did not sever the joint tenancy; although the second joint tenant did not file for bankruptcy, he remained an integral part of the lien, as a joint tenant and co-signer, and because the bankruptcy filing did not sever the joint tenancy, a judgment against the second joint tenant during the period of the bankruptcy stay would have amounted to a judgment against the first joint tenant. Heritage Contr., L.L.C. v. Vasquez, 81 Va. Cir. 161, 2010 Va. Cir. LEXIS 116 (Fairfax County Sept. 7, 2010).

Amended pleading time-barred. —

Pursuant to § 43-17 , the subcontractor was required to commence its action to enforce its lien within six months from the time the lien was recorded. Because more than six months had passed, the subcontractor was time-barred from amending its complaint to add the general contractor as a party to the subcontractor’s suit on bond. ADS Constr., Inc. v. Bacon Constr., Co., 85 Va. Cir. 456, 2012 Va. Cir. LEXIS 89 (Loudoun County Oct. 18, 2012).

Supplier could not amend its complaint to add a subcontractor as a defendant on a bond claim since: (1) the claim was time-barred under § 43-17 ; (2) the relation back provision in § 8.01-6.1 did not apply to mechanic’s liens; and (3) when a party sought enforcement of a bond posted under § 43-71 , the substantive and procedural requirements of the mechanic’s lien statutes applied. Johnson Controls v. Norair Eng'g Corp., 86 Va. Cir. 138, 2013 Va. Cir. LEXIS 3 (Fairfax County Jan. 10, 2013).

§ 43-17.1. Hearing on validity of lien.

Any party, having an interest in real property against which a lien has been filed, may, upon a showing of good cause, petition the court of equity having jurisdiction wherein the building, structure, other property, or railroad is located to hold a hearing to determine the validity of any perfected lien on the property. After reasonable notice to the lien claimant and any party to whom the benefit of the lien would inure and who has given notice as provided in § 43-18 of the Code of Virginia, the court shall hold a hearing and determine the validity of the lien. If the court finds that the lien is invalid, it shall forthwith order that the memorandum or notice of lien be released from record.

History. 1975, c. 380; 2010, c. 352.

The 2010 amendments.

The 2010 amendment by c. 352 substituted “released from record” for “removed from record” at the end of the last sentence.

Research References.

Virginia Forms (Matthew Bender). No. 6-504 Memorandum for Mechanic’s Lien by General Contractor; No. 6-506 Memorandum for Mechanic’s Lien by Subcontractor; No. 6-507 Memorandum for Mechanic’s Lien by Subcontractor — Preprinted Form.

CASE NOTES

Where the grantor of property subject to a mechanics’ lien conveyed the property with special warranty of title, the warranty had the effect under § 55-69 of a covenant to defend the grantee from those claiming through the grantor, and since the lienor was a party claiming through the grantor, the grantor had a sufficient interest within the meaning of this section to oppose the lien. Pic Constr. Co. v. First Union Nat'l Bank, 218 Va. 915 , 241 S.E.2d 804, 1978 Va. LEXIS 246 (1978).

Lien filed by construction corporation was not over-inclusive. —

Where development group argued that lien was over-inclusive because its property was not a single parcel, but rather two separate noncontiguous parcels, and that construction corporation could have described the property subject to its lien, the memorandum of mechanic’s lien filed by construction corporation, was not over-inclusive. A lienor, such as construction corporation, was entitled to rely upon the land records. Blue Ridge Constr. Corp. v. Stafford Dev. Group, 244 Va. 361 , 421 S.E.2d 199, 9 Va. Law Rep. 301, 1992 Va. LEXIS 85 (1992).

Lien held invalid. —

Because the contractor’s memorandum of mechanics’ lien failed to correspond to his contract, failed to describe the land and improvements upon which his lien rights existed, and purported to cover property to which his lien rights did not extend, it was invalid. Rosser v. Cole, 237 Va. 572 , 379 S.E.2d 323, 5 Va. Law Rep. 2304, 1989 Va. LEXIS 72 (1989).

Trial court properly granted a petition by a car wash to invalidate mechanic’s liens, as a contractor’s failure to file certifications of mailing of notice to the car wash along with the memoranda of liens as required by § 43-4 invalidated the liens in question. Britt Constr., Inc. v. Magazzine Clean, LLC, 271 Va. 58 , 623 S.E.2d 886, 2006 Va. LEXIS 9 (2006).

CIRCUIT COURT OPINIONS

Standing. —

Developer was entitled to release of the subcontractor’s mechanic’s lien as the admitted documents supported its claim that the general contractor was paid in full under the terms of the contract. Leesburg Bldg. Partners, LLC v. Mike Berger Inc., 2018 Va. Cir. LEXIS 2476 (Loudoun County Aug. 22, 2018).

Developer had standing to file a separate proceeding by petition under § 43-17.1 challenging the validity of a subcontractor’s mechanic’s lien against a condominium project where the developer’s conveyance of the condominium units to the third party owners was, in every instance, with special warranty of title, and thus, it retained an interest in the project. Leesburg Bldg. Partners, LLC v. Mike Berger Inc., 2018 Va. Cir. LEXIS 2476 (Loudoun County Aug. 22, 2018).

Lien held invalid. —

In a case in which, pursuant to § 43-17.1 , a construction company sought to invalidate a mechanics’ lien filed by a general contractor and the contractor argued that it performed building planning or architectural work, since the building ultimately erected, and now liened, incorporated none of the contractor’s architectural efforts, the architectural and planning work performed by the contractor, having never enhanced the burdened property, did not fall under the “performing labor” clause of § 43-3 . Dallan Constr., Inc. v. Super Structures Gen. Contrs., Inc., 79 Va. Cir. 11, 2009 Va. Cir. LEXIS 74 (Hanover County Jan. 30, 2009).

Demurrer sustained. —

Contractor’s demurrer was sustained as to the “process” for a cause of action for abuse of process because, in the absence of a suit to enforce, where a claimant has not served the other party with a complaint and summons, the mere filing of a mechanic’s lien alone did not a constitute “process” and a hearing to determine the validity of a lien was provided by statute. Cent. Radio Co., Inc. v. Warwick Builders, L.L.C., 108 Va. Cir. 252, 2021 Va. Cir. LEXIS 142 (Norfolk June 28, 2021).

§ 43-18. Lien of general contractor to inure to benefit of subcontractor.

The perfected lien of a general contractor on any building or structure shall inure to the benefit of any subcontractor, and of any person performing labor or furnishing materials to a subcontractor who has not perfected a lien on such building or structure, provided such subcontractor, or person performing labor or furnishing materials shall give written notice of his claim against the general contractor, or subcontractor, as the case may be, to the owner or his agent before the amount of such lien is actually paid off or discharged.

History. Code 1919, § 6434.

Law Review.

For survey of Virginia commercial law for the year 1974-1975, see 61 Va. L. Rev. 1668 (1975).

For survey on creditors’ rights in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989).

CASE NOTES

This section secures to the subcontractor the benefit of the lien given the general contractor, provided notice is given by former before lien is discharged. Shenandoah Valley R.R. v. Miller, 80 Va. 821 , 1885 Va. LEXIS 117 (1885).

But subcontractor is not obliged to claim through general contractor. —

Under this section the subcontractor may claim through the general contractor, but he is not obliged to do so. Under § 43-7 , the subcontractor may perfect his own independent lien. Knight v. Ferrante, 202 Va. 243 , 117 S.E.2d 283, 1960 Va. LEXIS 213 (1960).

The subcontractor, under the provisions of this section, may rely on the general contractor’s lien or, under the provisions of §§ 43-3 , 43-4 and 43-7 , he may file and undertake to enforce his own independent lien. VNB Mtg. Corp. v. Lone Star Indus., Inc., 215 Va. 366 , 209 S.E.2d 909, 1974 Va. LEXIS 293 (1974).

§ 43-19. Validity and priority of lien not affected by assignments.

Every assignment or transfer by a general contractor, in whole or in part, of his contract with the owner or of any money or consideration coming to him under such contract, or by a subcontractor of his contract with the general contractor, in whole or in part, or of any money or consideration coming to him under his contract with the general contractor, and every writ of fieri facias, attachment or other process against the general contractor or subcontractor to subject or encumber his interest arising under such contract, shall be subject to the liens given by this chapter to laborers, mechanics, and materialmen. No such assignment or transfer shall in any way affect the validity or the priority of satisfaction of liens given by this chapter.

History. Code 1919, § 6435.

Cross references.

As to priority of mechanics’ lien generally, see §§ 43-20 and 43-21 , and notes thereto.

As to assignment of supply and labor liens, see also § 43-26 .

CASE NOTES

Section is considered written into assignments. —

The words of this section as to assignments by a contractor are written into such assignments as effectually as if the assignment in terms stated as a condition precedent that it should be void and ineffective until after the payment in full of all debts due by the assignor to subcontractors, supply men and laborers for the construction of the building, and the section in its legal effect is a direction to the owner thus to distribute the fund. DeWitt v. Coffey, 150 Va. 365 , 143 S.E. 710 , 1928 Va. LEXIS 319 (1928).

It applies to contract of suretyship with option to complete. —

This section, which preserves the validity and priority of the liens of laborers, mechanics and materialmen against assignments or transfers by a contractor either of any part of his contract with the owner, or of any money or consideration coming to him under such contract, applies to a contract of suretyship by which the surety is given the option of completing the contract on default of the contractor. Electric Transmission Co. v. Pennington Gap Bank, Inc., 137 Va. 94 , 119 S.E. 99 , 1923 Va. LEXIS 140 (1923).

And to assignment to subcontractors. —

Under this section, every assignment of every kind by a general contractor to any party of any funds due, or to become due, to the general contractor under a contract for the erection of a building is subject to the mechanics’ liens given by this chapter, even though the assignees involved are subcontractors. Anderson v. White, 183 Va. 302 , 32 S.E.2d 72, 1944 Va. LEXIS 154 (1944).

Assignments given to subcontractors for work performed on the building, or supplies furnished, are not excepted. Anderson v. White, 183 Va. 302 , 32 S.E.2d 72, 1944 Va. LEXIS 154 (1944).

Priority of inchoate but potential liens is preserved. —

This section is without meaning or effect unless it preserves the priority of the inchoate but potential liens created by the chapter, because liens which attached before the assignment need no such protection. DeWitt v. Coffey, 150 Va. 365 , 143 S.E. 710 (1928). But see Fairbanks, Morse & Co. v. Town of Cape Charles, 144 Va. 56 , 131 S.E. 437 (1926), in which it was held that this section applied only to subcontractors who had perfected their liens on the structures erected.

This section protects inchoate liens. Perrin & Martin, Inc. v. United States, 233 F. Supp. 1016, 1964 U.S. Dist. LEXIS 9654 (E.D. Va. 1964).

But assignment is good against subcontractors who have no potential liens. —

Assignments are not void as to subcontractors who have permitted the time given by § 43-4 to expire without taking the necessary steps to perfect their liens, and thus have no potential right to perfect liens. Coleman v. Pearman, 159 Va. 72 , 165 S.E. 371 , 1932 Va. LEXIS 175 (1932).

Disbursements before lien notice not affected. —

In the absence of fraud or wrongful conversion, this section does not affect disbursements against the contract price made before lien notice is given. Kayhoe Constr. Corp. v. United Va. Bank, 220 Va. 285 , 257 S.E.2d 837, 1979 Va. LEXIS 261 (1979).

Subcontractors entitled to protection despite assignment. —

Under the facts of the case, the subcontractors, who, so far as the evidence showed, contracted with the assignee in good faith, are not to be denied the protection of this chapter merely because the owners did not know of the assignment. Mills v. Moore's Super Stores, 217 Va. 276 , 227 S.E.2d 719, 1976 Va. LEXIS 271 (1976).

§ 43-20. Extent of lien where owner has less than fee in land.

Subject to the provisions of § 43-3 , 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. When the vendee under a contract for the sale of real estate causes a building or structure to be erected or repaired on the land which is the subject of the contract and the owner has actual knowledge of such erection or repairs, the interest of the owner in the land shall be subject to liens created under this chapter; and for the purposes of § 43-21 , the interest of such an owner in the land, to the extent of the unpaid purchase price, shall be deemed to be a recorded purchase money deed of trust lien created at the time the contract of sale was fully executed. As used in this section, “a contract for the sale of real estate” shall not include a lease of real estate containing an option to purchase the leased real estate or an option to purchase real estate unless the option is enforceable against the optionee.

History. Code 1919, § 6436; 1924, p. 413; 1968, c. 568; 1980, c. 574.

Law Review.

For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

For review of judicial decisions of significance in Virginia affecting construction law, see 43 U. Rich. L. Rev. 107 (2008).

CASE NOTES

Editor’s note.

The cases in the following annotations were decided under this section as it read prior to the 1968 amendment.

Section 43-3 construed with this section. —

Section 43-3 , which provides in general terms that all persons performing labor or furnishing material for the construction of buildings shall have a mechanics’ lien upon the structure and the land necessary for its use, must be construed in connection with this section. It is clear that the General Assembly only intended to authorize mechanics’ liens upon the interest or estate in the land of the person requiring or authorizing the work to be done. Feuchtenberger v. Williamson, Carroll & Saunders, 137 Va. 578 , 120 S.E. 257 , 1923 Va. LEXIS 181 (1923).

Lessor’s interest is not affected where building erected by lessee. —

When the provisions of § 43-3 and this section are read together, it is clear that the interest of a lessor in a lot upon which the lessee has erected a building cannot be subjected to the liens of mechanics for erecting such building, unless the lessor or his duly authorized agent caused the building to be erected thereon. Atlas Portland Cement Co. v. Main Line Realty Corp., 112 Va. 7 , 70 S.E. 536 , 1911 Va. LEXIS 45 (1911) (see Carter v. Keeton, 112 Va. 307 , 71 S.E. 554 (1911)).

Though building is erected under lessee’s contract with lessor. —

Where a lessee has covenanted to erect a building on the leased premises, and such building is erected thereon by a mechanic under a contract with the lessee, by which the lessor is in no way bound, directly or indirectly, the building is not “caused” to be erected by the lessor, within the meaning of this section and the mechanic cannot assert a lien against the interest of the lessor in the leased premises. Atlas Portland Cement Co. v. Main Line Realty Corp., 112 Va. 7 , 70 S.E. 536 , 1911 Va. LEXIS 45 (1911).

Liens against equitable estates. —

Personal decree may be entered against person ordering improvements without authority. —

In a suit in equity against the owner of land to enforce a mechanics’ lien for repairs, a personal decree may be rendered against the person who, having no interest in the land, ordered the repairs without authority from the owner, if such person is a party to the suit. Carter v. Keeton, 112 Va. 307 , 71 S.E. 554 , 1911 Va. LEXIS 84 (1911).

CIRCUIT COURT OPINIONS

Complaint insufficient to enforce lien. —

Limited recovery when owner did not order or authorize improvements. —

Because a tenant did not act as an owner’s agent in ordering or authorizing improvements to the owner’s property, the subcontractors and the general contractor were limited in recovery of their mechanics’ lien and quantum meruit claims to the tenant’s leasehold interest. T & M Elec. v. Prologis Trust, 70 Va. Cir. 403, 2006 Va. Cir. LEXIS 169 (Loudoun County Apr. 27, 2006).

§ 43-21. Priorities between mechanics’ and other liens.

No lien or encumbrance upon the land created before the work was commenced or materials furnished shall operate upon the building or structure erected thereon, or materials furnished for and used in the same, until the lien in favor of the person doing the work or furnishing the materials shall have been satisfied; nor shall any lien or encumbrance upon the land created after the work was commenced or materials furnished operate on the land, or such building or structure, until the lien in favor of the person doing the work or furnishing the materials shall have been satisfied.

Unless otherwise provided in the subordination agreement, if the holder of the prior recorded lien of a purchase money deed of trust subordinates to the lien of a construction money deed of trust, such subordination shall be limited to the construction money deed of trust and said prior lien shall not be subordinate to mechanics’ and materialmen’s liens to the extent of the value of the land by virtue of such agreement.

In the enforcement of the liens acquired under the previous sections of this chapter, any lien or encumbrance created on the land before the work was commenced or materials furnished shall be preferred in the distribution of the proceeds of sale only to the extent of the value of the land estimated, exclusive of the buildings or structures, at the time of sale, and the residue of the proceeds of sale shall be applied to the satisfaction of the liens provided for in the previous sections of this chapter. Provided that liens filed for performing labor or furnishing materials for the repair or improvement of any building or structure shall be subject to any encumbrance against such land and building or structure of record prior to the commencement of the improvements or repairs or the furnishing of materials or supplies therefor. Nothing contained in the foregoing proviso shall apply to liens that may be filed for the construction or removal of any building or structure.

Notwithstanding the provisions of subsection C of § 43-3 , a general contractor may, prior to or after providing any labor, services, or materials, contract to subordinate his lien rights to prior recorded and later recorded deeds of trust, provided that such contract is (i) in writing and (ii) signed by any general contractor whose lien rights are subordinated pursuant to such contract.

History. Code 1919, § 6436; 1924, p. 413; 1968, c. 568; 2018, cc. 79, 325.

The 2018 amendments.

The 2018 amendments by cc. 79 and 325 are identical, and added the fourth paragraph.

Law Review.

For article, “Virginia Mechanics’ Liens: A Precarious Priority,” see 21 Wash. & Lee L. Rev. 235 (1964).

For survey of Virginia commercial law for the year 1970-71, see 57 Va. L. Rev. 1527 (1971).

For survey of Virginia law on business associations for the year 1970-1971, see 57 Va. L. Rev. 1541 (1971).

For survey of Virginia commercial law for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

CASE NOTES

Under this section, a mechanics’ lien has preference over other liens. When another lien or encumbrance is created before the work is commenced or the materials furnished it does not operate on the building until the mechanics’ lien is satisfied; if created after the work is commenced or the materials furnished it does not operate on the land or building until the mechanics’ lien is satisfied. Kinnier Co. v. Cofer, 13 Va. L. Reg. 238 (1927) (see also DeWitt v. Coffey, 150 Va. 365 , 143 S.E. 710 (1928); Rust v. Indiana Flooring Co., 151 Va. 845 , 145 S.E. 321 (1928)).

This section modifies § 55-96. —

The effect of this section is to modify the registry law as contained in § 55-96 so far as to give priority to a mechanics’ lien on the lands of the grantee who has failed to record his deed over judgments subsequently obtained against his grantor. Pace v. Moorman, 99 Va. 246 , 37 S.E. 911 , 1901 Va. LEXIS 35 (1901).

Priority of lien created on land before work was begun. —

Under this section, where a lien was created on the land before the work for which the mechanics’ lien is claimed was begun or the materials were furnished, the former lien is the first lien on the land and the second lien on the building or structure. Federal Land Bank v. Clinchfield Lumber & Supply Co., 171 Va. 118 , 198 S.E. 437 , 1938 Va. LEXIS 263 (1938).

A deed of trust recorded before the work began is entitled to priority to the extent of the estimated value of the property without the improvements for which the lien is claimed. Fidelity Loan & Trust Co. v. Dennis, 93 Va. 504 , 25 S.E. 546 , 1896 Va. LEXIS 104 (1896); Hudson v. Barham, 101 Va. 63 , 43 S.E. 189 , 1903 Va. LEXIS 3 (1903).

A mechanics’ lien was not entitled to priority over a claim of the United States based on an unpaid Small Business Administration loan. W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

Lien attaches when work commences or supplies furnished. —

Fact that a deed of trust was recorded prior to delivery of some of the building materials provided by a supplier had no effect on the priority of the supplier’s mechanics’ lien as to those materials vis-a-vis those previously delivered; all of the materials supplied for the construction had the same lien priority as the materials supplied on the first day regardless of intervening liens. Kiser v. Russell County, 344 Bankr. 432, 2004 Bankr. LEXIS 2459 (Bankr. W.D. Va. 2004).

Section ineffective against claims of United States. —

However effective this section may be on its face to secure their liens against competing nonfederal claims, it is ineffective against claims of the United States. W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

Hence, when the Small Business Administration has joined a private bank in making a construction loan secured by a recorded deed of trust and the borrower becomes insolvent, the SBA’s interest in the unpaid balance of the loan is not subordinate to mechanics’ liens accorded priority over deeds of trust by state law. W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

And state laws purporting to fix priorities among lienholders must yield to the federal insolvency statute (31 U.S.C. § 3713) in any nonbankruptcy insolvency proceeding where it is applicable and seasonably invoked by the United States. W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

Federal common law prevails. —

Federal common law, by which “the first in time is the first in right,” prevails over state law in matters affecting the priority of claims of the United States. W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

Even if “federal common law” is inapplicable, a debt owing to the United States would be in any event paramount to mechanics’ liens by virtue of the federal insolvency statute (31 U.S.C. § 3713). W.T. Jones & Co. v. Foodco Realty, Inc., 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

Effect of filing and recording against claim of United States. —

Whether a vendor’s or a mechanics’ lien has priority is a question that may be affected by extraneous circumstances, and in such case where the master’s report of the liens and their priorities is confirmed without exception thereto, the court will not give relief against alleged errors therein on a bill of review. Phipps v. Wise Hotel Co., 116 Va. 739 , 82 S.E. 681 , 1913 Va. LEXIS 1 (1913).

Extinguishing priority does not extinguish claim. —

The remedy of the mechanics’ lien statute is to grant a priority, but the extinguishing of such priority does not in and of itself extinguish the claim. United States Elevator Corp. v. 1616 Reminc Ltd. Partnership, 9 Bankr. 679, 1981 Bankr. LEXIS 4852 (Bankr. E.D. Va. 1981).

Duty to place lien only upon property worked and no more. —

Where a mechanic files a memorandum of mechanic’s lien against two or more parcels but has not worked on all the parcels and where the mechanic attempts to enforce that lien against the several properties, that lien must be declared invalid in its entirety since it is the mechanics’ duty to place his lien upon the property on which he worked and no more. Woodington Elec., Inc. v. Lincoln Sav. & Loan Ass'n, 238 Va. 623 , 385 S.E.2d 872, 6 Va. Law Rep. 780, 1989 Va. LEXIS 161 (1989).

Mechanics’ lienor cannot demand release of prior lien. —

The mortgagor, as owner of the land, had no right to tender to the mortgagee the estimated value of the land necessary for the enjoyment of the building and demand a release of the mortgage thereon, nor did the holder of the mechanics’ lien have any such right, either under the express language of this section or within its implied intent. Federal Land Bank v. Clinchfield Lumber & Supply Co., 171 Va. 118 , 198 S.E. 437 , 1938 Va. LEXIS 263 (1938).

Liens against legal and equitable titles. —

If the owner of the full equitable estate in land causes buildings to be erected thereon, for the cost of which a mechanic records a lien, such lien, by the terms of this section, takes priority, as to both land and buildings, over all liens thereafter acquired on the land, and also over all judgments thereafter recovered against the equitable owner’s grantor, who holds the mere legal title to the land. If the mechanics’ lien has been enforced by the sale of the property, the purchaser has the right to stand in the shoes of the mechanic before the sale. Pace v. Moorman, 99 Va. 246 , 37 S.E. 911 , 1901 Va. LEXIS 35 (1901).

Lien for loan of money cannot be novated into mechanics’ lien. —

The theory of the mechanics’ lien law is based upon an equitable vendor’s lien, and, as a lien for the loan of money is solely a matter of collateral contract, it cannot be novated into a mechanics’ lien by applying the money to payment for labor and material. W.T. Jones & Co. v. Foodco Realty, Inc., 206 F. Supp. 878, 1962 U.S. Dist. LEXIS 6104 (W.D. Va. 1962), modified, 318 F.2d 881, 1963 U.S. App. LEXIS 5236 (4th Cir. 1963).

Bulkhead as new structure. —

Evidence supported the Commissioner’s findings that a bulkhead constructed following severe storm damage to a motel was not for the purpose of repairing damages to the previously existing building, but was in fact a new structure erected on the premises for the express purpose of protecting the motel building against future damage arising out of an excessive high tide or a storm, and that the value of the property exclusive of the land was increased thereby by an amount in excess of the claims of the mechanics’ lienors, thus entitling the mechanics’ liens to the priority over existing liens and encumbrances established by this section. Strauss v. Princess Anne Marine & Bulkheading Co., 209 Va. 217 , 163 S.E.2d 198, 1968 Va. LEXIS 219 (1968).

How value of land without improvements estimated. —

Where a mechanics’ lien is recorded on property upon which there is a deed of trust recorded before work began on the building or structure placed thereon, the deed of trust creditor is entitled to priority of satisfaction to the extent of the estimated value of the property without the improvements for which the lien is claimed. The value is to be estimated as of the date of sale, and may be fixed directly by the court upon the testimony of witnesses, or by reference to a commissioner. Fidelity Loan & Trust Co. v. Dennis, 93 Va. 504 , 25 S.E. 546 , 1896 Va. LEXIS 104 (1896) (see also Hudson v. Barham, 101 Va. 63 , 43 S.E. 189 (1903)).

CIRCUIT COURT OPINIONS

Lien priority. —

Trustee’s demurrer, which argued that the lien of a deed of trust was superior to a subcontractor’s lien, was overruled because the factual allegations of the complaint did not establish whether the deed of trust was of record prior to the commencement of work under the construction contract. Lin R. Rogers Elec. Contrs. Inc. v. Flynn Constr. Mgmt. Gen. Contr., Inc., 99 Va. Cir. 515, 2010 Va. Cir. LEXIS 367 (Essex County Dec. 9, 2010).

OPINIONS OF THE ATTORNEY GENERAL

Notice requirements. —

§ 43-22. How liens enforced.

The liens created and perfected under this chapter may be enforced in a court of equity by a bill filed in the county or city wherein the building, structure, or railroad, or some part thereof is situated, or wherein the owner, or if there be more than one, any of them, resides. The plaintiff shall file with his bill an itemized statement of his account, showing the amount and character of the work done or materials furnished, the prices charged therefor, the payments made, if any, the balance due, and the time from which interest is claimed thereon, the correctness of which account shall be verified by the affidavit of himself, or his agent. When suit is brought for the enforcement of any such lien against the property bound thereby, all parties entitled to such liens upon the property or any portion thereof may file petitions in such suit asking for the enforcement of their respective liens to have the same effect as if an independent suit were brought by each claimant.

History. Code 1919, § 6437; 1920, p. 485.

Cross references.

As to limitation on suits to enforce mechanics’ liens, see § 43-17 .

For rule of court on intervenors generally, see Rule 3:14.

Law Review.

For survey of Virginia commercial law for the year 1970-1971, see 57 Va. L. Rev. 1527 (1971).

for the year 1975-1976, see 62 Va. L. Rev. 1375 (1976).

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 32 Juvenile and Domestic Relations Courts; Family Courts; Small Claims Courts; Commissioners in Chancery: Local Rules of Court. § 32.05 Commissioners in Chancery. Charles E. Friend.

Virginia Forms (Matthew Bender). No. 6-510 Complaint by General Contractor to Enforce Mechanic’s Lien; Nos. 6-511 et seq.

CASE NOTES

Perfection statute contrasted with enforcement statutes. —

A lien created by Code § 43-3 is one in derogation of the common law. Once perfected in accordance with § 43-4 , the lien can be enforced by suit brought as provided in § 43-17 and this section. In Virginia provisions of the enforcement statutes are to be construed liberally while the requirements of the perfection statute are to be construed strictly. American Std. Homes Corp. v. Reinecke, 245 Va. 113 , 425 S.E.2d 515, 9 Va. Law Rep. 776, 1993 Va. LEXIS 5 (1993).

Perfection of mechanics’ liens is completed upon filing the memorandum required by § 43-4 and does not involve the separate, second step of filing an enforcement suit under this section; once a memorandum is properly filed in proper form perfection is complete. Concrete Structures, Inc. v. Tidewater Crane and Rigging Co., 261 Bankr. 627, 2001 U.S. Dist. LEXIS 3675 (E.D. Va. 2001).

A proceeding under this section is analogous to a lien creditors’ suit, and is controlled by the same consideration, and is subject to similar rules of equitable practice. Monk v. Exposition Deepwater Pier Corp., 111 Va. 121 , 68 S.E. 280 , 1910 Va. LEXIS 13 (1910).

A mechanic’s lien is enforceable only under the conditions established by statute and, in the absence of compliance with those statutory provisions, a court has no jurisdiction to enforce the mechanic’s lien. Isle of Wight Materials Co. v. Cowling Bros., 246 Va. 103 , 431 S.E.2d 42, 9 Va. Law Rep. 1466, 1993 Va. LEXIS 98 (1993).

The claim of mechanics’ lien creditors is not a personal claim but is against the building and can only be enforced in a court of equity in the manner prescribed by this section. Nicholas v. Harrisonburg Bldg. & Supply Co., 181 Va. 207 , 24 S.E.2d 452, 1943 Va. LEXIS 169 (1943).

Suit is not one against other lien creditors. —

A suit under this section to enforce a mechanics’ lien is not a suit against other lien creditors, even when convened as parties defendant. They are impleaded as matter of convenience. The suit is analogous to a lien creditors’ suit. Monk v. Exposition Deepwater Pier Corp., 111 Va. 121 , 68 S.E. 280 , 1910 Va. LEXIS 13 (1910).

They are proper, but not necessary, parties. All known lien creditors, and all disclosed by the records, may be made parties, but a failure to do so is not fatal to the proceedings. Monk v. Exposition Deepwater Pier Corp., 111 Va. 121 , 68 S.E. 280 , 1910 Va. LEXIS 13 (1910).

Bill must show on its face that suit was brought in time. —

A bill to enforce the lien which does not show on its face that suit was brought within the time prescribed by § 43-17 is demurrable. Savings Bank v. Powhatan Clay Mfg. Co., 102 Va. 274 , 46 S.E. 294 , 1904 Va. LEXIS 66 (1904).

Unless fact appears in record. —

Where the record shows that a suit to enforce a mechanics’ lien was brought within the time fixed by § 43-17 , that fact need not be alleged in the bill, as the court will take judicial notice of the time when the suit was instituted. Sands v. Stagg, 105 Va. 444 , 52 S.E. 633 , 1906 Va. LEXIS 47 (1906).

The filing of a memorandum of mechanic’s lien is a judicial proceeding entitling filer to an absolute privilege against slander. Donohoe Constr. Co. v. Mount Vernon Assocs., 235 Va. 531 , 369 S.E.2d 857, 4 Va. Law Rep. 3040, 1988 Va. LEXIS 80 (1988).

Allegation of timely perfection of lien. —

A bill to enforce a mechanics’ lien contains a sufficient allegation that the lien was perfected before the expiration of 30 (now 60) days from the termination of the work, when it alleges that the lien was filed as provided for in §§ 43-3 and 43-4 , and the copy of the record of the lien exhibited with the bill shows a part performance within 30 (now 60) days of the recordation of the lien. Richlands Flint Glass Co. v. Hiltebeitel, 92 Va. 91 , 22 S.E. 806 , 1895 Va. LEXIS 91 (1895).

Limitation on lienor’s intervening petition. —

When read together, it is clear that § 43-17 and this section require that a lienor’s intervening petition in a suit to enforce a mechanics’ lien be filed within the limitation period provided in § 43-17 . Commonwealth Mechanical Contractors v. Standard Fed. Sav. & Loan, 222 Va. 330 , 281 S.E.2d 811, 1981 Va. LEXIS 309 (1981).

Where appellant mechanics’ lienors sought to enforce their liens over two years after the filing of their memoranda of mechanics’ liens by filing intervening petitions in a pending suit by appellee lienor which named them as defendants, the trial court properly sustained appellee lienor’s demurrer to the petitions. The enforcement of appellants’ liens was barred because the intervening petitions were not filed within the limitation period set out in § 43-17 . Commonwealth Mechanical Contractors v. Standard Fed. Sav. & Loan, 222 Va. 330 , 281 S.E.2d 811, 1981 Va. LEXIS 309 (1981).

Being named as a defendant. —

Being named defendant not suit under § 43-17 . —

Although the filing of an intervening petition in a suit filed by another lienor is the equivalent of instituting a suit under § 43-17 , being named a party defendant in a suit by a lienor is not. Commonwealth Mechanical Contractors v. Standard Fed. Sav. & Loan, 222 Va. 330 , 281 S.E.2d 811, 1981 Va. LEXIS 309 (1981).

Each separate house and lot is separate debtor. —

Where each of several mechanics’ liens is separate and distinct and asserted against separate parcels of real estate, the ultimate validity of each lien is dependent upon when the specific building upon which the work was done was completed or the work thereon otherwise terminated. Each house and lot, and none other, stands as a separate debtor — an in rem defendant — against which liability for the work done on that particular building can be enforced. Shelton v. Ogus, 201 Va. 417 , 111 S.E.2d 408, 1959 Va. LEXIS 243 (1959).

Trustee in an antecedent deed of trust recorded on unimproved land is necessary party in suit to enforce mechanic’s lien on the improvements. Walt Robbins, Inc. v. Damon Corp., 232 Va. 43 , 348 S.E.2d 223, 3 Va. Law Rep. 490, 1986 Va. LEXIS 225 (1986).

And the beneficiary of the antecedent deed of trust was a necessary party to the suits to enforce the mechanic’s liens. Walt Robbins, Inc. v. Damon Corp., 232 Va. 43 , 348 S.E.2d 223, 3 Va. Law Rep. 490, 1986 Va. LEXIS 225 (1986).

General contractor not a necessary party. —

In a mechanic’s lien dispute, a general contractor was not a necessary party to a subcontractor’s lien enforcement action because it did not have a pecuniary interest since it was neither the principal nor the surety on the bond, and it had no ability to be awarded a judgment to be paid out from the bond. The general contractor failed to perfect its mechanic’s lien on the real estate because it did not file a “memorandum of lien” and “a certification of mailing of a copy of the memorandum of lien to the owner of the property in the county clerk’s office; the lien was lost as a result. Synchronized Constr. Servs. v. Prav Lodging, LLC, 288 Va. 356 , 764 S.E.2d 61, 2014 Va. LEXIS 155 (2014).

Chancellor must have jurisdiction over person of trustee before divesting him of title. —

If legal title is vested in the trustee of an antecedent deed of trust, and the property is to be sold free of the trust lien, the chancellor must have jurisdiction over the person of the trustee before he can enter a decree divesting him of title. Walt Robbins, Inc. v. Damon Corp., 232 Va. 43 , 348 S.E.2d 223, 3 Va. Law Rep. 490, 1986 Va. LEXIS 225 (1986).

The filing of the memorandum is not a proceeding at which parties with adverse interests may challenge the validity of the lien. Indeed, it is not a “proceeding” at all. A suit to enforce that lien is, however, such a proceeding. Walt Robbins, Inc. v. Damon Corp., 232 Va. 43 , 348 S.E.2d 223, 3 Va. Law Rep. 490, 1986 Va. LEXIS 225 (1986).

The object of the memorandum is to register the claimant’s lien and to put potential purchasers of the property on notice of the existence of the lien. Walt Robbins, Inc. v. Damon Corp., 232 Va. 43 , 348 S.E.2d 223, 3 Va. Law Rep. 490, 1986 Va. LEXIS 225 (1986).

Lack of particularity in the account is not jurisdictional. It is a long-settled practice in this jurisdiction that when a defendant is not satisfied with the alleged particulars of the plaintiff’s claim, he may ask for, and usually obtains, under the direction of the court further particulars of the claim. Where the owners sought no further particulars of the subcontractors’ claims, but in effect moved to strike the bill on the ground of the alleged insufficiency of the accounts, the lower court properly overruled that motion. Knight v. Ferrante, 202 Va. 243 , 117 S.E.2d 283, 1960 Va. LEXIS 213 (1960).

Misdescription in account disregarded as surplusage. —

Where the account inaccurately described the dwelling as “one-story” rather than “two-story,” the mistake was disregarded as surplusage, since there was no doubt as to the dwelling on which the work had been done. Knight v. Ferrante, 202 Va. 243 , 117 S.E.2d 283, 1960 Va. LEXIS 213 (1960).

Filing verification after demurrer. —

The complainant’s filing of the verifying affidavit required by this section after defendant filed a demurrer but before the court acted upon the demurrer served to overcome the objection. Herbert Bros. v. McCarthy Co., 220 Va. 907 , 265 S.E.2d 685, 1980 Va. LEXIS 182 (1980).

Account held sufficient. —

The account clearly itemized the things contracted for and supplied. The law does not require anything further. Rust v. Indiana Flooring Co., 151 Va. 845 , 145 S.E. 321 , 1928 Va. LEXIS 277 (1928).

Where the account, read in connection with the further allegations in the bill, sufficiently established that the work and materials were contracted for as an entirety, it met the requirement of this section. Knight v. Ferrante, 202 Va. 243 , 117 S.E.2d 283, 1960 Va. LEXIS 213 (1960).

How land necessary for use and enjoyment described. —

The quantity of land necessary to the convenient use of the building is sufficiently described by reference to an exhibit filed with the bill, giving an adequate description of it. Richlands Flint Glass Co. v. Hiltebeitel, 92 Va. 91 , 22 S.E. 806 , 1895 Va. LEXIS 91 (1895).

Court of equity will give complete relief. —

Where a court of equity takes cognizance of a suit to enforce a mechanics’ lien, the entire case will be considered and a decree rendered according to equity and the right of the cause. Bailey Constr. Co. v. Purcell, 88 Va. 300 , 13 S.E. 456 , 1891 Va. LEXIS 32 (1891).

A court of equity, in a suit to enforce a mechanics’ lien, should proceed to determine all of the questions before it. Bailey Constr. Co. v. Purcell, 88 Va. 300 , 13 S.E. 456 , 1891 Va. LEXIS 32 (1891); Rison v. Moon, 91 Va. 384 , 22 S.E. 165 , 1895 Va. LEXIS 36 (1895); Johnston & Grommett Bros. v. Bunn, 108 Va. 490 , 62 S.E. 341 , 1908 Va. LEXIS 58 (1908).

It may enter a personal decree. —

In a proceeding in equity to enforce a mechanics’ lien it may turn out when the evidence is taken that the complainants in the bill are not entitled to a lien upon the specific property in question; but, if it appears that the complainants are entitled to recover from the defendants, the court can proceed to enter a personal decree against the defendants for the amount due, although the complainants may have failed to establish their right to a lien. Johnston & Grommett Bros. v. Bunn, 108 Va. 490 , 62 S.E. 341 , 1908 Va. LEXIS 58 (1908) (see also Taylor v. Netherwood, 91 Va. 88 , 20 S.E. 888 (1895)).

Priority of federal law. —

United States’ lien, secured by its deed of trust, has priority over a mechanics’ lien asserted under this section. J.S. Purcell Lumber Corp. v. Henson, 405 F. Supp. 1130, 1975 U.S. Dist. LEXIS 14908 (E.D. Va. 1975).

When carpenters, plumbers and building supply houses extend credit on a construction project financed by federal money, their rights and priorities under state law are superseded by a federal law of priority. J.S. Purcell Lumber Corp. v. Henson, 405 F. Supp. 1130, 1975 U.S. Dist. LEXIS 14908 (E.D. Va. 1975).

CIRCUIT COURT OPINIONS

Intervention. —

Intervenor was entitled to join suit in which contractor sought to enforce liens for construction work it performed in a subdivision, as the intervenor alleged it had the right to enforce its liens for improvements it provided in the same subdivision and for which it had not been paid. Burton & Robinson, Inc. v. Harmon at Oakton, L.C., 56 Va. Cir. 1, 2001 Va. Cir. LEXIS 164 (Fairfax County Jan. 5, 2001).

Necessary party. —

Because the bond did not absolve the general contractor from liability to the subcontractor, the general contractor retained an immediate interest in resisting the demand made in the suit on bond; Thus, the general contractor was a necessary party to the subcontractor’s suit. ADS Constr., Inc. v. Bacon Constr., Co., 85 Va. Cir. 456, 2012 Va. Cir. LEXIS 89 (Loudoun County Oct. 18, 2012).

§ 43-23. Priority among liens perfected under this chapter.

There shall be no priority among the liens created and perfected under this chapter, except that the lien of a subcontractor shall be preferred to that of his general contractor; the lien of persons performing labor or furnishing materials for a subcontractor, shall be preferred to that of such subcontractor; and liens filed by persons performing manual labor shall have priority over materialmen to the extent of the labor performed during the thirty days immediately preceding the date of the performance of the last labor.

History. Code 1919, § 6437; 1920, p. 485.

Michie’s Jurisprudence.

For related discussion, see 12A M.J. Liens, § 11.

CASE NOTES

Assignment to subcontractor is void as to other subcontractors. —

Assignments received by subcontractors from the general contractor before he defaulted in the performance of his contract, which assignments were upon the owner for amounts due for labor and materials furnished, were clearly prohibited by this section and § 43-19 insofar as other subcontractors were concerned, and there was no priority by reason of them. Anderson v. White, 183 Va. 302 , 32 S.E.2d 72, 1944 Va. LEXIS 154 (1944).

Priority to subcontractor liens. —

County commissioner’s finding that pursuant to § 43-23 , there was no priority among mechanics’ liens, except that the lien of a subcontractor shall be preferred to that of his general contractor and his decision to give priority to subcontractor liens over the general contractor’s lien, and to give priority to the general contractor’s lien over the lenders’ lien pursuant to § 43-23 was not plainly wrong or without evidence to support his determination concerning priority. Glasser & Glasser, PLC v. Jack Bays, Inc., 285 Va. 358 , 741 S.E.2d 599, 2013 Va. LEXIS 29 (2013).

§ 43-23.1. Forfeiture of lien.

Any person who shall, with intent to mislead, include in his memorandum of lien work not performed upon, or materials not furnished for, the property described in his memorandum shall thereby forfeit any right to a lien under this chapter.

History. 1968, c. 568; 1976, c. 253.

CASE NOTES

Purpose of 1976 amendment. —

When the General Assembly amended this section by substituting the words “with intent to mislead” for the word “knowingly,” the amendment did not constitute a substantive change in the statute. Rather, the amendment was enacted simply to reinforce the original legislative intent by clarifying an after-discovered semantical ambiguity. Prior to the amendment, “knowingly” meant more than “with knowledge.” Rather, “knowingly” in this context was an antonym of “innocently” and a synonym of “designedly” and “with intent to mislead.” First Nat'l Bank v. Roy N. Ford Co., 219 Va. 942 , 252 S.E.2d 354, 1979 Va. LEXIS 193 (1979).

A lienor may not enforce a lien against one project for the cost of labor or materials furnished on another. First Nat'l Bank v. Roy N. Ford Co., 219 Va. 942 , 252 S.E.2d 354, 1979 Va. LEXIS 193 (1979).

Forfeiture not warranted. —

The act of a subcontractor in including in his memorandum of mechanic’s lien debts due on projects other than the project in question did not constitute a forfeiture of the subcontractor’s right to a mechanic’s lien under this section where the statement of account filed prior to the memorandum contained data which corresponded fully with invoices and with the amount claimed in memorandum and where no evidence of an intent to mislead was produced. First Nat'l Bank v. Roy N. Ford Co., 219 Va. 942 , 252 S.E.2d 354, 1979 Va. LEXIS 193 (1979).

Beneficiary of antecedent deed of trust entitled to notice and opportunity to challenge. —

Because the proceeds of a judicial sale under a decree enforcing a mechanic’s lien may prove to be insufficient to pay both lien creditors in full, the beneficiary of an antecedent deed of trust has a property right which entitles him to notice and an opportunity to challenge the perfection of the mechanics’ lien or to invoke the forfeiture provisions of this section. Walt Robbins, Inc. v. Damon Corp., 232 Va. 43 , 348 S.E.2d 223, 3 Va. Law Rep. 490, 1986 Va. LEXIS 225 (1986).

§ 43-23.2. Remedies cumulative.

The remedies afforded by this chapter shall be deemed cumulative in nature and not be construed to be in lieu of any other legal or equitable remedies.

History. 1968, c. 568.

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 97.

CASE NOTES

Chapter 2. Liens on Franchises and Property of Transportation, etc., Companies.

§ 43-24. Liens of employees, suppliers, etc.

All conductors, brakemen, engine drivers, firemen, captains, stewards, pilots, clerks, depot or office agents, storekeepers, mechanics, traveling representatives or laborers, and all persons furnishing railroad iron, engines, cars, fuel and all other supplies necessary to the operation of any railway, canal or other transportation company, and all clerks, mechanics, traveling representatives, foremen, and laborers, and superintendents to the extent of not more than $100 per week, who furnish their services or labor to any one or more individuals trading under a real or fictitious name, or names, or to any partnership or other unincorporated body of persons, engaged in mining or manufacturing, or to any mining or manufacturing company, whether such railway, canal or other transportation or mining or manufacturing company be chartered under or by the laws of this Commonwealth, or be chartered elsewhere and be doing business within the limits of this Commonwealth, shall have a prior lien on the franchises, gross earnings and on all the real and personal property of such individual, partnership, unincorporated association or company which is used in operating the same, to the extent of the moneys due them by the individual, partnership, unincorporated association or company for such wages or supplies, which lien shall be superior to, and have priority over, any amount due by such individual, partnership, unincorporated association or company for rents, or royalties.

No mortgage, deed of trust, sale, hypothecation or conveyance executed since the first day of May, 1888, shall defeat or take precedence over such lien. The lien secured by this section to parties furnishing supplies, shall be subordinate to that allowed to clerks, mechanics, foremen, superintendents, and laborers for services furnished as aforesaid.

If any person entitled to a lien as well under § 43-3 as under this section, shall perfect his lien given by either section, he shall not be entitled to the benefit of the other.

No right to or remedy upon a lien which has already accrued to any person shall be extended, abridged or otherwise affected hereby.

History. Code 1919, § 6438; 1922, p. 13; 1932, p. 596; 1938, p. 17; 2010, c. 343.

The 2010 amendments.

The 2010 amendment by c. 343 substituted “$100” for “twenty-five dollars” in the first sentence.

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Assignments for the Benefit of Creditors, § 57; 2B M.J. Bankruptcy, § 113; 12A M.J. Liens, §§ 11, 12; 12B M.J. Mechanics’ Liens, § 12.

CASE NOTES

Analysis

I. General Consideration.
II. Against Whom Lien May Be Filed.
III. Who May Subject Property to Lien.
IV. Supplies and Labor for Which Lien May Exist.
V. Priorities.
VI. Effect of Bankruptcy.

I.General Consideration.

Construction of chapter. —

There must be a substantial compliance with the requirement of that portion of this chapter which relates to the creation of the laborer’s lien, but the provisions with respect to its enforcement should be liberally construed. Mathews v. Meyers, 151 Va. 426 , 145 S.E. 352 , 1928 Va. LEXIS 243 (1928) (see Wright v. Chase Nat’l Bank, 92 F.2d 271 (4th Cir. 1937)).

Necessity for section. —

In the nature of things, those who work for corporations seldom have possession of products of their labor, and unless the statutory lien given by this section attaches to them, the remedy designed by the legislature for their protection is in most instances but a shadow. Mathews v. Meyers, 151 Va. 426 , 145 S.E. 352 , 1928 Va. LEXIS 243 (1928).

This section is not contrary to the Fourteenth Amendment to the United States Constitution as being special and class legislation. Virginia Dev. Co. v. Crozer Iron Co., 90 Va. 126 , 17 S.E. 806 , 1893 Va. LEXIS 21 (1893); First Nat'l Bank v. William R. Trigg Co., 106 Va. 327 , 56 S.E. 158 , 1907 Va. LEXIS 93 (1907), dismissed, 218 U.S. 693, 31 S. Ct. 218, 54 L. Ed. 1212, 1910 U.S. LEXIS 2175 (1910) (see also Robert Bunts Eng'g & Equip. Co. v. Palmer, 169 Va. 206 , 192 S.E. 789 , 1937 Va. LEXIS 167 (1937).

But it is unconstitutional as to liens existing prior to its date, and valid as to those arising thereafter. Citizens' & Marine Bank v. Mason, 2 F.2d 352, 1924 U.S. App. LEXIS 2046 (4th Cir. 1924); Mathews v. Meyers, 151 Va. 426 , 145 S.E. 352 , 1928 Va. LEXIS 243 (1928).

It did not impair the charter right of a corporation to issue bonds and secure the same, where the corporation was organized prior to the effective date of this section, and the charter was taken subject to the general law then in effect and any changes that might be made therein; hence bondholders who took the bonds after the enactment of the section were bound by its provisions as to priority of liens. Virginia Dev. Co. v. Crozer Iron Co., 90 Va. 126 , 17 S.E. 806 , 1893 Va. LEXIS 21 (1893).

For the history of this section, see Newgass v. Atlantic & D. Ry., 56 F. 676, 1893 U.S. App. LEXIS 2704 (C.C.D. Va. 1893); Building Supplies Corp. v. Willcox, 284 F. 113, 1922 U.S. App. LEXIS 2348 (4th Cir. 1922).

Supply lien not inconsistent with lien of car-trust contract. —

A lien for the purchase money of rolling stock reserved under a car-trust contract, recorded pursuant to former § 55-89, was no wise inconsistent with the existence of a supply lien under this section. Newgass v. Atlantic & D. Ry., 56 F. 676, 1893 U.S. App. LEXIS 2704 (C.C.D. Va. 1893).

II.Against Whom Lien May Be Filed.

Section applies only to companies strictly engaged in businesses named. —

The legislature, in placing railroad, canal and other transportation companies and mining and manufacturing companies all in one section, plainly had in mind corporations extensive in character, and at least those actually and chiefly so engaged, and not such as might incidentally, from a technical viewpoint, be engaged partially in manufacturing something used, or capable of being used, in connection with the business in hand. “Mining or manufacturing companies” in this section manifestly was intended to apply to companies strictly engaged in the businesses named, which considered along with other portions of the section applicable to railroad, canal, and other transportation companies, clearly indicated the actual engaging in one of the five things named in the section, to wit, operating a railroad, canal, or transportation company, or a mining or manufacturing business. Citizens' & Marine Bank v. Mason, 2 F.2d 352, 1924 U.S. App. LEXIS 2046 (4th Cir. 1924).

But “manufacturing company” may buy and sell raw material. —

A company whose general business, well recognized and understood, was that of the manufacture of rough lumber into flooring, ceiling, box shooks and other dressed material, was a manufacturing company within the meaning of this section, notwithstanding that it bought and sold rough lumber as an incident in connection with its regular business. In re W. Norfolk Lumber Co., 112 F. 759, 1902 U.S. Dist. LEXIS 405 (D. Va. 1902).

A boilermaker is a manufacturer. First Nat'l Bank v. William R. Trigg Co., 106 Va. 327 , 56 S.E. 158 , 1907 Va. LEXIS 93 (1907), dismissed, 218 U.S. 693, 31 S. Ct. 218, 54 L. Ed. 1212, 1910 U.S. LEXIS 2175 (1910).

And a shipbuilding company may be a manufacturing company. —

A company which manufactured ships of all sorts and sizes, and all necessary fittings and furniture therefor, and in addition did a considerable amount of original and repair work for other manufacturing concerns, was held to be a manufacturing company within the meaning of this section. First Nat'l Bank v. William R. Trigg Co., 106 Va. 327 , 56 S.E. 158 , 1907 Va. LEXIS 93 (1907), dismissed, 218 U.S. 693, 31 S. Ct. 218, 54 L. Ed. 1212, 1910 U.S. LEXIS 2175 (1910).

A bottling company is not a manufacturing company within the meaning of this section. Citizens' & Marine Bank v. Mason, 2 F.2d 352, 1924 U.S. App. LEXIS 2046 (4th Cir. 1924).

III.Who May Subject Property to Lien.

The principal officers of a company are not within the provisions of this section. Wilson v. Hall, 81 F.2d 918, 1936 U.S. App. LEXIS 3581 (4th Cir. 1936).

The manager of a manufacturing company is not a “laborer” or “traveling representative” entitled to a preferred lien for salary under this section, although he spent about half his time traveling. Wright v. Chase Nat'l Bank, 92 F.2d 271, 1937 U.S. App. LEXIS 4544 (4th Cir. 1937).

Nor is the president and general manager. —

The president of a manufacturing company is not given priority of lien to secure his salary by this section. And to designate him as general manager does not change his official relation to the company, nor does it bring him within any of the classes to whom priority is given. Seventh Nat'l Bank v. Shenandoah Iron Co., 35 F. 436, 1887 U.S. App. LEXIS 2958 (C.C.D. Va. 1887).

Nor the secretary and treasurer. —

Claims for salaries by the manager and the secretary and treasurer of a corporation were properly disallowed as labor claims, these officers not being within the provisions of this section giving labor claims a priority. Fidelity Ins., Trust & Safe-Deposit Co. v. Roanoke Iron Co., 81 F. 439, 1896 U.S. App. LEXIS 3061 (C.C.D. Va. 1896).

A telegraph company is not a laborer. —

A telegraph company rendering services to a railroad is not a laborer within the intent and reason of this section and § 43-25 . Newgass v. Atlantic & D. Ry., 72 F. 712, 1894 U.S. App. LEXIS 3167 (C.C.D. Va. 1894).

“Laborers” and contractors distinguished. —

Where the lien claimant laid the track, constructed the overhead line and strung the necessary feeder wire for an electric railway, under an agreement with the railway whereby payment was to be made at a fixed price per foot or mile, the railway furnishing all the materials and the lien claimant furnishing all his own tools and labor, the claimant was a contractor, and not a laborer, and did not come within the purview of this section. Frick Co. v. Norfolk & O.V.R.R., 86 F. 725, 1898 U.S. App. LEXIS 2332 (4th Cir. 1898).

Persons who contracted to move their sawmill upon the property of a lumber company, and there to log, mill out and rack certain lumber, at a stated sum per thousand feet, were contractors, and not “laborers” within the meaning of this section. Tucker v. Bryan, 217 F. 576, 1913 U.S. App. LEXIS 986 (4th Cir. 1913).

IV.Supplies and Labor for Which Lien May Exist.

Medical services to employee are not supplies necessary to operation of railroad. —

The claim of a hospital for medical services and board rendered to an employee of a railroad company who was injured and disabled in its service does not fall within the terms of this section. The hospital did not furnish “supplies necessary to the operation of the railroad.” Newgass v. Atlantic & D. Ry., 56 F. 676, 1893 U.S. App. LEXIS 2704 (C.C.D. Va. 1893).

Nor are permanent buildings forming part of railway plant. —

Claims for material and labor furnished to an electric railway for the construction of a carbarn, train sheds, power and boiler houses, a workshop and a car depot, are not claims for supplies necessary to the operation of the railway. These are supplies and labor furnished for the construction of permanent buildings which are properly part of the railway plant. The buildings are not in themselves supplies necessary to the operation of the railway. They are buildings erected for the protection and preservation of the cars, engines and other machinery, just as roundhouses and car sheds are used by steam railroads for the protection and preservation of their locomotives and coaches. Their character as property is distinct from that of necessary supplies as defined by this section. Frick Co. v. Norfolk & O.V.R.R., 86 F. 725, 1898 U.S. App. LEXIS 2332 (4th Cir. 1898).

A hotel operated by a railroad is a distinct piece of property and cannot be confounded with the railroad proper in such a way as to bring the cost of its construction, repair and furnishing under the head of labor and supplies necessary to the operation of the railroad, giving it a prior lien as such. Frick Co. v. Norfolk & O.V.R.R., 86 F. 725, 1898 U.S. App. LEXIS 2332 (4th Cir. 1898).

Engines for the purpose of generating electricity, furnishing the propelling power for an electric railway, are “engines . . . necessary to the operation” of such a railway. Frick Co. v. Norfolk & O.V.R.R., 86 F. 725, 1898 U.S. App. LEXIS 2332 (4th Cir. 1898).

Cars supplied under “car-trust” contract are “furnished”. —

Cars supplied to a railroad under a “car-trust” contract, recorded pursuant to former § 55-89, were “furnished” to the railroad within the meaning of this section, notwithstanding that the contract spoke of the transaction as a lease and the vendor’s name appeared as owner on plates attached to the cars. Newgass v. Atlantic & D. Ry., 56 F. 676, 1893 U.S. App. LEXIS 2704 (C.C.D. Va. 1893).

V.Priorities.

Preference given is unconditional. —

The preference this section gives the general creditor against the corpus of a railroad’s assets is unconditional. Southern Ry. v. Flournoy, 301 F.2d 847, 1962 U.S. App. LEXIS 5577 (4th Cir. 1962).

Laborers’ liens are prior lien on all employer’s property. —

Laborers’ liens, pursuant to this section and § 43-25 , are made a prior lien on all the employer’s property. Textile Banking Co. v. Widener, 265 F.2d 446, 1959 U.S. App. LEXIS 4916 (4th Cir. 1959).

Superior to factor’s lien and lien of Reconstruction Finance Corporation. —

A factor’s lien upon a bankrupt’s inventories and accounts receivable, and the lien of the Reconstruction Finance Corporation, which held a deed of trust on the bankrupt’s land, plant and machinery, were subordinate to laborers’ liens. In re Lincoln Indus., Inc., 166 F. Supp. 240, 10 Ohio Op. 2d 231, 84 Ohio Law Abs. 34, 1958 U.S. Dist. LEXIS 3528 (D. Va. 1958), aff'd in part and rev'd in part, 265 F.2d 446, 1959 U.S. App. LEXIS 4916 (4th Cir. 1959).

The lien conferred by this section has priority over a mechanics’ lien under § 43-3 for furnishing materials for the original construction of the same property. Building Supplies Corp. v. Willcox, 284 F. 113, 1922 U.S. App. LEXIS 2348 (4th Cir. 1922).

The difference between the lien under this section and the mechanics’ lien is that the mechanics’ lien under § 43-3 is put upon the building or structure and so much of the land therewith as shall be necessary for the convenient use and enjoyment thereof, while this section puts the lien upon all the real and personal property of the company which is used in operating the same. The conflict between these liens, therefore, would only be as to such buildings or structures and lands as are used in operating the company. Building Supplies Corp. v. Willcox, 284 F. 113, 1922 U.S. App. LEXIS 2348 (4th Cir. 1922).

Supplier’s lien prevails over earlier mortgage. —

This section gives a lien on the franchises, gross earnings and on all the real and personal property of a railroad, notwithstanding any earlier mortgage, for supplies furnished on accounts becoming due and payable within 90 days before the filing of a memorandum of lien. Southern Ry. v. Flournoy, 301 F.2d 847, 1962 U.S. App. LEXIS 5577 (4th Cir. 1962).

But lien attaches only to such interest as employer has acquired. —

The prior lien given to employees under this section attaches to only such interest in the property as the employer has acquired; it is superior to only those encumbrances placed upon the property by the employer itself; if the employer has acquired property subject to encumbrances placed upon it by the former owner, or has given a purchase-money mortgage, these encumbrances are not affected by the liens conferred by this section. M.A. Furbush & Son Mach. Co. v. Liberty Woolen Mills, 81 F. 425, 1896 U.S. App. LEXIS 3060 (C.C.D. Va. 1896).

When lien superior to purchase-money deed of trust. —

Where a deed and a deed of trust of standing timber permitted the timber to be cut and manufactured, and provided that the vendees should pay the vendors so much per thousand feet upon the timber cut and account monthly, laborers had the right to assume that there had been no default in the payments on the purchase price since operations were carried on without protest, and the laborer’s lien under this section on the sawed lumber was superior to the lien of the deed of trust for the purchase money. Mathews v. Meyers, 151 Va. 426 , 145 S.E. 352 , 1928 Va. LEXIS 243 (1928).

Contract passing title to brokers. —

Under the terms of a contract between an iron company and its brokers, iron produced by the company was shipped to the brokers accompanied by bills of lading in their name, and the brokers were to advance a percentage of the market price, and were to hold the iron and sell it in their discretion. The first proceeds of sale were to go to their advances, then all charges were to be deducted, and, after an account for these was made up, the iron company had a right to the net balance, if any. It was held that the title to the iron so shipped passed to the brokers and out of the iron company, and the iron did not constitute part of the personal property of the iron company so as to be subject to the lien conferred by this section. Fidelity Ins., Trust & Safe-Deposit Co. v. Roanoke Iron Co., 81 F. 439, 1896 U.S. App. LEXIS 3061 (C.C.D. Va. 1896).

Prior assignment of chose in action is superior. —

A valid assignment of a chose in action made by a manufacturing company is superior to liens under this section for labor furnished more than two years thereafter. S.H. Hawes & Co. v. William R. Trigg Co., 110 Va. 165 , 65 S.E. 538 , 1909 Va. LEXIS 130 (1909), modified, 218 U.S. 452, 31 S. Ct. 49, 54 L. Ed. 1107, 1910 U.S. LEXIS 2041 (1910).

The bona fide holder for value of warehouse and storage receipts has priority over a claimant asserting a lien which attached after the transfer and delivery of the receipts. Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579 , 44 S.E. 760 , 1903 Va. LEXIS 62 (1903).

Lien does not attach to vessel becoming property of United States as fast as built. —

Where, under the terms of a contract between the United States and a shipbuilding company, title to a vessel under construction passed to the United States as fast as the work progressed and payments under the contract were made, the vessel was not subject to the lien provided by this section. United States v. Ansonia Brass & Copper Co., 218 U.S. 452, 31 S. Ct. 49, 54 L. Ed. 1107, 1910 U.S. LEXIS 2041 (1910).

But it is superior to contractual lien of United States on vessel under construction. —

Where the only lien which the United States could assert on a vessel in the course of construction by a manufacturing company was one reserved under the contract as collateral security for installment payments made during construction, such lien was inferior and subordinate to the lien given by this section. United States v. Ansonia Brass & Copper Co., 218 U.S. 452, 31 S. Ct. 49, 54 L. Ed. 1107, 1910 U.S. LEXIS 2041 (1910).

Receiver’s certificates. —

One who has perfected a lien upon the property of a corporation pursuant to this section cannot, without notice, representation and an opportunity to be heard, be deprived of his lien by the decree of a court of chancery ordering the issuance of receiver’s certificates and making such certificates preferred liens upon the property. Osborne v. Big Stone Gap Colliery Co., 96 Va. 58 , 30 S.E. 446 , 1898 Va. LEXIS 60 (1898).

VI.Effect of Bankruptcy.

Lien will be recognized in court of bankruptcy. —

The liens given by this section will be recognized and enforced by a court of bankruptcy, although perfected within four months prior to the adjudication. In re W. Norfolk Lumber Co., 112 F. 759, 1902 U.S. Dist. LEXIS 405 (D. Va. 1902).

The lien attaches at the time the supplies are furnished, and is not destroyed by the adjudication in bankruptcy of the debtor intervening between the time when the last item on the account for supplies is due and the filing and recording of the claim. Mott v. Wissler Mining Co., 135 F. 697, 1905 U.S. App. LEXIS 4361 (4th Cir. 1905).

§ 43-25. Perfection and enforcement of lien.

No person shall be entitled to the lien given by § 43-24 unless he shall, within ninety days after the last item of his bill becomes due and payable for which such supplies are furnished or service rendered, file in the clerk’s office of the circuit court of the county or circuit court of the city in which is located the chief office in this Commonwealth of the company against which the claim is, or in the clerk’s office of the Circuit Court of the City of Richmond when such office is in the city, or within that time shall file with the receiver, trustee or assignee of such company, a memorandum of the amount and consideration of his claim, and the time or times when the same is, or will become due and payable, verified by affidavit, which memorandum, if filed with the clerk or in his office, the clerk shall forthwith record in the miscellaneous lien book and index the same in the name of the claimant and also in the name of the company against which the claim is, as required by § 43-4 . Any such lien may be enforced in a court of equity.

History. Code 1919, § 6439; 1928, p. 760.

Cross references.

For requirement that liens be recorded in the general deed book and indexed in the general index of deeds, see § 43-4.1 .

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Assignments for the Benefit of Creditors, § 57; 2B M.J. Bankruptcy, § 113; 12A M.J. Liens, §§ 11, 12; 12B M.J. Mechanics’ Liens, § 12.

CASE NOTES

Substantial compliance is required. —

While the provisions of this chapter should be liberally construed, there must be a substantial compliance with the requirements of this section, which relates to the creation of the lien. Wilson v. Hall, 81 F.2d 918, 1936 U.S. App. LEXIS 3581 (4th Cir. 1936).

An affidavit made before a notary public in another state and not verified as required by § 49-5 in such cases is not a nullity, and the omission to have an officer of a court of record of the state where the affidavit was made certify that the notary was authorized to administer the oath can be supplied. Fidelity Ins., Trust & Safe-Deposit Co. v. Roanoke Iron Co., 81 F. 439, 1896 U.S. App. LEXIS 3061 (C.C.D. Va. 1896).

Time of filing memorandum is governed by date when claim matures. —

The time within which the memorandum must be filed is governed by the date when the claim matures; the date of furnishing the supplies is immaterial. If the claim is payable in installments, this section means that the memorandum must be filed within 90 days after the last installment is due. Newgass v. Atlantic & D. Ry., 56 F. 676, 1893 U.S. App. LEXIS 2704 (C.C.D. Va. 1893).

But time is not extended by acceptance of note for wages. —

This section does not contemplate that a company may give its note, due 60 days or one or two years after date, for the amount due its laborer, and that then, when the note is due, 90 days shall be allowed thereafter in which to file a memorandum claiming a lien; it means that a claim for a lien shall be made within 90 days from the time the labor was performed — from the day the laborer was entitled to demand his wages. Liberty Perpetual Bldg. & Loan Co. v. M.A. Furbush & Son Mach. Co., 80 F. 631, 1897 U.S. App. LEXIS 2240 (4th Cir. 1897).

And memorandum may be filed before claim becomes due. —

The language of this section, “within ninety days after the last item of his bill becomes due and payable,” is not used to designate the beginning and the end of the period in which the memorandum may be filed, but to fix a period not later than or beyond which the memorandum cannot be filed. A lien claimant who has extended credit may file his memorandum from the time the supplies are furnished, although the term of credit has not expired. In re W. Norfolk Lumber Co., 112 F. 759, 1902 U.S. Dist. LEXIS 405 (D. Va. 1902).

Lien relates back to date supplies were furnished. —

The lien dates from the time of furnishing the supplies, and it may be claimed at any time after the supplies are furnished, whether the goods are sold for cash or on credit, provided the claim is filed not later than 90 days after the last item of the account becomes due and payable. If the claim is filed within that time, the lien secured relates back to the time the supplies were furnished. In re W. Norfolk Lumber Co., 112 F. 759, 1902 U.S. Dist. LEXIS 405 (D. Va. 1902).

Time runs from last item of continuous contract. —

If the supplies are furnished under a single contract, and are in fulfillment thereof, the items of the account are continuous, and the lien claimant has 90 days from the due date of the last item within which to file his memorandum and perfect his lien. On the other hand, if the several items of the account, or a portion of them, are furnished under separate contracts, then the lien should be filed 90 days from the due date of the last item under each independent contract. Frick Co. v. Norfolk & O.V.R.R., 86 F. 725, 1898 U.S. App. LEXIS 2332 (4th Cir. 1898); First Nat'l Bank v. William R. Trigg Co., 106 Va. 327 , 56 S.E. 158 , 1907 Va. LEXIS 93 (1907), dismissed, 218 U.S. 693, 31 S. Ct. 218, 54 L. Ed. 1212, 1910 U.S. LEXIS 2175 (1910).

Limitation is suspended by order of reference to master. —

An order of reference to a master suspends the running of the statutory limitation of 90 days within which the memorandum must be filed in order to secure a lien. Seventh Nat'l Bank v. Shenandoah Iron Co., 35 F. 436, 1887 U.S. App. LEXIS 2958 (C.C.D. Va. 1887); Newgass v. Atlantic & D. Ry., 56 F. 676, 1893 U.S. App. LEXIS 2704 (C.C.D. Va. 1893); Fidelity Ins., Trust & Safe-Deposit Co. v. Roanoke Iron Co., 81 F. 439, 1896 U.S. App. LEXIS 3061 (C.C.D. Va. 1896).

But not by pendency of suit and appointment of receivers. —

The limitation in this section is not suspended by the pendency of a suit in which receivers have been appointed. Seventh Nat'l Bank v. Shenandoah Iron Co., 35 F. 436, 1887 U.S. App. LEXIS 2958 (C.C.D. Va. 1887).

Claims are enforceable in bankruptcy. —

When a lien for wages has been perfected in the manner prescribed by this section it is enforceable under § 67d of the Bankruptcy Act, which provides for the preservation and enforcement of liens given in good faith and not repugnant to the Bankruptcy Act. Harrington v. Sencindiver, 173 Va. 33 , 3 S.E.2d 381, 1939 Va. LEXIS 174 (1939).

And memorandum may be filed after adjudication. —

The lien given by § 43-24 attaches at the time the supplies are furnished, and is not destroyed by the adjudication in bankruptcy of the debtor intervening between the time when the last item on the account for supplies is due and the filing and recording of the claim. Mott v. Wissler Mining Co., 135 F. 697, 1905 U.S. App. LEXIS 4361 (4th Cir. 1905).

Effect of failure to perfect lien against bankrupt. —

Where wage claims are not perfected in the manner prescribed by this section, such claims are not enforceable in bankruptcy as prior liens on the property of a corporation. But failure to perfect the liens under this section does not mean that the wage claims are not entitled to priority under the Bankruptcy Act and under the provisions of the deed of assignment. Harrington v. Sencindiver, 173 Va. 33 , 3 S.E.2d 381, 1939 Va. LEXIS 174 (1939).

§ 43-26. Assignee’s rights.

Any assignee of such a claim as is mentioned in the preceding sections may file the memorandum and make the oath required by such sections, and shall have the same rights as his assignor.

History. Code 1919, § 6440.

Cross references.

As to protection of assignee, transferee or indorsee of debt secured by mechanics’ lien, see § 43-65 .

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 97; 16 M.J. Schools, § 2.

Chapter 3. Liens for Advances.

§ 43-27. Repealed by Acts 1964, c. 219.

§ 43-27.1. When clerk may destroy crop lien agreement and crop lien book.

Any agreement evidencing a lien on crops required by § 43-27 to be docketed in a clerk’s office may be destroyed by such clerk after twenty-four months from the date the same is docketed in his office. Any “Crop Lien Book,” together with the index thereto, required by § 43-27 to be kept in a clerk’s office, may be destroyed by such clerk after twenty-four months from the date the last entry has been made therein, provided the same is replaced with a similar book and index for the recordation of current liens.

History. 1962, c. 109.

Editor’s note.

Section 43-27 , referred to in two places above, was repealed by Acts 1964, c. 219. For provisions as to future advances, see now § 8.9A-204 .

§ 43-28. Repealed by Acts 1964, c. 219.

§ 43-29. Liens of landlords and farmers for advances to tenants and laborers.

Provision for lien; enforcement and priority. — If any owner or occupier of land contract with any person to cultivate or raise livestock on such land as his tenant for rent either in money or a share of the crop or livestock; or if any person engaged in the cultivation of land contract with any laborer thereon for a share of the crop or the livestock raised thereon as his wages; and such owner or occupier of the land, or such person engaged in the cultivation of land, shall make any advances in money, supplies, or other thing to such tenant or laborer, he shall have a lien to the extent of such advances on all the crops or livestock, or the share of such laborer in the crops or livestock that are made or seeded or raised, grown or fed on the land during the year in which the advances are made, which shall be prior to all other liens on such crops or livestock or such portion thereof, or share therein. And he shall have the same remedy for the enforcement of such lien by distress when the claim is due, or by attachment when the claim is not yet payable, as is given a landlord for the recovery of rent under § 8.01-130.4 ; provided, that he or his agent, shall, before suing out the distress warrant, make affidavit before the magistrate issuing the same to the amount of his claim, that it is then due and is for advances made under contract to a tenant cultivating or raising livestock on his land, or a laborer working or raising livestock on the same; and before suing out the attachment, make the like affidavit, and also at what time the claim will become payable, and that the debtor intends to remove, or is removing from such land such crops or livestock, or his portion thereof, or share therein, so that there will not be left enough to satisfy the claim. The person, whose crops or livestock are so distrained or attached, shall have all the rights and be entitled to all the remedies allowed a tenant against a distress or attachment for rent.
When verified statement of advances required. — However, when the crops or livestock are subject to a lien of a fieri facias or attachment, whether a levy be actually made or not, it shall be the duty of the person claiming a lien under this section, upon the request of the sheriff, or any other party in interest, to render to the sheriff of the county wherein the crops or livestock are raised or grown, a complete and itemized statement under oath of the claims for advances, showing the nature of the claims, the dates of advancement and the respective amounts. And in case the person claiming advances fails to render to the sheriff of such county the verified itemized statement above provided for within ten days after the request has been made, he shall forever lose the benefit of the lien on the crops or livestock for advances granted him under this section.
When further showing as to advances required. — If the execution creditor or attachment creditor desires to contest the validity of the claims for advances, he may cause the clerk of the circuit court of the county in which such crops are grown or livestock raised to summon the person claiming the lien for advances to appear before such court and show to the satisfaction of the court that such money, supplies or other things of value were advanced for the purpose of, and were necessary in and about the cultivation of the crops or the raising of the livestock upon which the lien is claimed.

History. Code 1919, § 6454; 1930, p. 946; 1942, p. 294; 1956, c. 80; 2008, cc. 551, 691.

Cross references.

As to protection of assignee, transferee or indorsee of debt secured by crop lien, see § 43-65 .

Editor’s note.

The 2008 amendments.

The 2008 amendments by cc. 551 and 691 are identical, and substituted “the magistrate” for “the justice of the peace” following “make affidavit before the” in the second sentence in subdivision (1).

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 97.

§ 43-30. Lien of landlord and other recorded liens not affected by lien given under § 43-27; nor is right to claim exemption.

The lien provided for in § 43-27 shall not affect in any manner the rights of the landlord to his proper share of rents, or his lien for rent or advances, or his right of distress or attachment for the same, nor any lien existing at the time of making the agreement mentioned in such section, which is required by law to be recorded and shall have been admitted to record. Nor shall it affect the right of the party to whom the advances have been made, to claim such part of his crops as is exempt from levy or distress for rent.

History. Code 1919, § 6455.

Editor’s note.

Section 43-27 , referred to above, was repealed by Acts 1964, c. 219. For provisions as to future advances, see now § 8.9A-204 .

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 97.

Chapter 4. Liens of Innkeepers, Livery Stable, Garage and Marina Keepers, Mechanics and Bailees.

§ 43-31. Lien of innkeepers, etc.

Every innkeeper and the keeper of a boardinghouse or house of private entertainment shall have a lien upon, and may retain possession of, the baggage and other property of his guest or boarder brought upon his premises, and also upon the property of the employer of such guest or boarder, controlled and brought upon the premises by such guest or boarder in the course of his employment, for the proper charges due from such guest for his board and lodging.

History. Code 1919, § 6444.

Law Review.

For note, “Effect of the Uniform Commercial Code on Virginia Law,” see 20 Wash. & Lee L. Rev. 267 (1963).

For case comment on the innkeeper’s lien and due process, see 5 U. Rich. L. Rev. 447 (1971).

28 Wash. & Lee L. Rev. 481 (1971).

Research References.

Virginia Forms (Matthew Bender). No. 6-501 Summons for Lien of Mechanic for Repairs in General District Court; No. 6-502 et seq.

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 97; 16 M.J. Schools, § 2.

CASE NOTES

For the history of this section, see Talbott v. Southern Seminary, Inc., 131 Va. 576 , 109 S.E. 440 , 1921 Va. LEXIS 48 (1921).

This section gives an undisputed possessory lien to the benefitted party. Epperley v. Woodyard, 4 Bankr. 124, 1980 Bankr. LEXIS 5312 (Bankr. W.D. Va. 1980).

Boardinghouse defined. —

A boardinghouse is not in common parlance, or any legal meaning either, a private house where one or more boarders are kept occasionally only and upon special considerations, but it is a quasi-public house where boarders are generally and habitually kept, and which is held out and known as a place of entertainment of that kind. Talbott v. Southern Seminary, Inc., 131 Va. 576 , 109 S.E. 440 , 1921 Va. LEXIS 48 (1921).

“Boardinghouse” and “house of private entertainment” are the same. —

As used in this section the terms “boardinghouse” and “house of private entertainment” mean the same thing. Talbott v. Southern Seminary, Inc., 131 Va. 576 , 109 S.E. 440 , 1921 Va. LEXIS 48 (1921).

This section does not give a lien to a boarding school on the baggage or property of its pupils. Talbott v. Southern Seminary, Inc., 131 Va. 576 , 109 S.E. 440 , 1921 Va. LEXIS 48 (1921).

§ 43-32. Lien of keeper of livery stable, marina, etc.

Every keeper of a livery stable, hangar, tie-down, or marina, and every person pasturing or keeping any horses or other animals, boats, aircraft, or harness, shall have a lien upon such horses and other animals, boats, aircraft, and harness, for the amount that may be due him for the towing, storage, recovery, keeping, supporting, and care thereof, until such amount is paid.
In the case of any boat or aircraft subject to a chattel mortgage, security agreement, deed of trust, or other instrument securing money, the keeper of the marina, hangar, or tie-down shall have a lien thereon for his reasonable charges for storage under this section not to exceed $500 and for alteration and repair under § 43-33 not to exceed $1,000. However, in the case of a storage lien, to obtain the priority for an amount in excess of $300, the person asserting the lien shall make a reasonable attempt to notify any secured party of record at the Department of Wildlife Resources by telephonic means and shall give written notice by certified mail, return receipt requested, to any secured party of record at the Department of Wildlife Resources within seven business days of taking possession of the boat or aircraft. If the secured party does not, within seven business days of receipt of the notice, take or refuse redelivery to it or its designee, the lienor shall be entitled to priority for the full amount of storage charges, not to exceed $500. Notwithstanding a redelivery, the watercraft shall be subject to subsection D.
In addition, any person furnishing services involving the towing and recovery of a boat or aircraft shall have a lien for all normal costs incident thereto, if the person asserting the lien gives written notice within seven days of receipt of the boat or aircraft by certified mail, return receipt requested, to all secured parties of record at the Department of Wildlife Resources.
In addition, any keeper shall be entitled to a lien against any proceeds remaining after the satisfaction of all prior security interests or liens and may retain possession of such property until such charges are paid.

History. Code 1919, § 6445; 1968, c. 320; 1970, c. 56; 1976, c. 77; 1977, c. 382; 1981, c. 453; 1984, c. 396; 1988, c. 120; 1990, c. 665; 1992, c. 403; 1999, c. 533; 2004, c. 215; 2005, c. 98; 2006, cc. 874, 891; 2009, c. 664; 2016, c. 397; 2020, c. 958.

Cross references.

As to misdemeanor for defrauding person holding a lien on an animal, see § 18.2-188.1 . As to misdemeanor for defrauding keeper of watercraft, see § 18.2-189 . For liens on motor vehicles for garage keepers or mechanics, see §§ 46.2-644.01 and 46.2-644.02 , respectively.

Editor’s note.

Acts 2009, c. 664, cl. 3, provides: “That the provisions of this act shall become effective on October 1, 2009.”

The 1999 amendment, in subsection B, in the first sentence, substituted “$625” for “$500,” and substituted “subsection D” for “subsection C” in the last sentence; and redesignated former subsections B through E as subsections C through F.

The 2004 amendments.

The 2004 amendment by c. 215 substituted “$800” for “$625” in the first sentence of subsection B.

The 2005 amendments.

The 2005 amendment by c. 98, in subsection B, substituted “$500” for “$300” twice, “$300” for “$150,” and “three business days” for “seven days,” and inserted “make a reasonable attempt to notify any secured party of record at the Department of Motor Vehicles or the Department of Game and Inland Fisheries by telephonic means and shall” and “within three business days of taking possession of the boat, aircraft or vehicle”; and substituted “return it to the owner if the owner claims the items prior to auction” for “promptly return it to the owner” in subsection E.

The 2006 amendments.

The 2006 amendments by cc. 874 and 891 are identical, and inserted “towing, storage, recovery” in subsection A; and in subsection B, substituted “seven business days” for “three business days” in the second and third sentences and “amount of storage charges, not to exceed $500” for “$500” in the third sentence.

The 2009 amendments.

The 2009 amendment by c. 664, effective October 1, 2009, substituted “boat or aircraft” for “boat, aircraft, or vehicle” in the first and second sentences in subsection B and two places in subsection C and deleted “Department of Motor Vehicles or the” preceding “Department” in two places in the second sentence in subsection B and in subsection C; in subsection A, substituted “tie-down, or marina and every person‘ for “tie-down, marina, or garage, and every person” and deleted “vehicles” following “animals” in two places; in subsection B, substituted “hangar, or tie-down” for “hangar, or tie-down, or garage” in the first sentence and deleted “vehicle or” preceding “watercraft”; and deleted subsections E and F, pertaining to which read: “E. Any lien created under this section shall not extend to any personal property which is not attached to or considered to be necessary for the proper operation of any motor vehicle, and it shall be the duty of any keeper of such personal property to return it to the owner if the owner claims the items prior to auction.” and “F. For the purposes of this section, in the case of a truck or combination of vehicles, the owner or in the case of a rented or leased vehicle, the lessee of the truck or tractor truck shall be liable for the costs of the towing, recovery, and storage of the cargo and of any trailer or semitrailer in the combination. Nothing in this subsection, however, shall bar the owner of the truck or tractor truck from subsequently seeking to recover from the owner of any trailer, semitrailer, or cargo all or any portion of these towing, recovery, and storage costs.”

The 2016 amendments.

The 2016 amendment by c. 397, in subsection A, substituted “that may be” for “which may be”; and substituted “$1,000” for “$800” in subsection B.

The 2020 amendments.

The 2020 amendment by c. 958 substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” twice in subsection B and once in subsection C.

Law Review.

For note, “Effect of the Uniform Commercial Code on Virginia Law,” see 20 Wash. & Lee L. Rev. 267 (1963).

For survey of recent legislation on liens, as to keepers of garages and marinas, see 5 U. Rich. L. Rev. 198 (1970).

For survey of Virginia commercial law for the year 1969-1970, see 56 Va. L. Rev. 1387 (1970).

Research References.

Virginia Forms (Matthew Bender). No. 13-317. Agreement to Quarantine and Board Horses.

Michie’s Jurisprudence.

For related discussion, see 1B M.J. Animals, § 7; 2B M.J. Automobiles, § 130; 2B M.J. Bankruptcy, § 77; 3C M.J. Commercial Law, §§ 95, 100; 8A M.J. Exemptions from Execution and Attachment, § 10; 12A M.J. Livery Stables, § 2; 12B M.J. Mechanics’ Liens, § 8.

CASE NOTES

This section gives an undisputed possessory lien to the benefitted party limited only to the amounts set forth as to prior existing encumbrances. Epperley v. Woodyard, 4 Bankr. 124, 1980 Bankr. LEXIS 5312 (Bankr. W.D. Va. 1980).

Priority of lien over homestead deed. —

See Epperley v. Woodyard, 4 Bankr. 124, 1980 Bankr. LEXIS 5312 (Bankr. W.D. Va. 1980).

Underlying interest not transformed into judicial lien. —

Even where enforcement of a livery stable keeper’s lien, provided for by statute, contemplates effectuation through the court system, such proceedings do not transform the underlying interest into a judicial lien. O'Malley v. Rapidan River Farm, 24 Bankr. 900, 1982 U.S. Dist. LEXIS 15829 (E.D. Va. 1982).

Amount to which claimant entitled where limit increased by amendment during proceedings. —

Claimant was entitled to the $150.00 amount provided under this section for alterations and repairs when the transactions took place, rather than the $500.00 amount in effect when an adversary proceeding was filed in federal bankruptcy court, since the claims for alterations and repairs to the boat giving rise to a lien arose before the passage of the 1984 amendment. Blue Ridge Recreation, Inc. v. Dean, 55 Bankr. 332, 1985 Bankr. LEXIS 4889 (Bankr. W.D. Va. 1985).

CIRCUIT COURT OPINIONS

Possession of property not required. —

Nothing within subsection A of § 43-32 states that a lienor must maintain possession of the property in order to assert a lien upon it; in fact, subsection D of § 43-32 states that remaining in possession of the property is merely an option for the potential lienor. Gold Key Aviation, L.L.C. v. Int'l Jet Charter, Inc., 56 Va. Cir. 421, 2001 Va. Cir. LEXIS 482 (Norfolk Sept. 19, 2001).

Manager found to be keeper. —

Manager was a keeper within the plain meaning of the word for purposes of establishing a lien on an aircraft where it arranged for and provided hangar space for the owner’s aircraft, coordinated and provided services necessary to maintain and legally operate the aircraft, and, as a lessee, was accountable for all activities that occurred in the hangar and/or tie-down space. Gold Key Aviation, L.L.C. v. Int'l Jet Charter, Inc., 56 Va. Cir. 421, 2001 Va. Cir. LEXIS 482 (Norfolk Sept. 19, 2001).

Dollar amount of lien not limited. —

Subsection A of § 43-32 does not limit the dollar amount of a keeper’s lien for the support, keeping, and care of an aircraft; subsection B of § 43-32 simply establishes the priority of a secured creditor over the lienor and limits a storage lien to $300 for property subject to a chattel mortgage or other security interest. Gold Key Aviation, L.L.C. v. Int'l Jet Charter, Inc., 56 Va. Cir. 421, 2001 Va. Cir. LEXIS 482 (Norfolk Sept. 19, 2001).

Lien was valid, perfected, and enforceable. —

Where a manager asserted and provided proof that the claim was filed in accordance with § 43-34.1 , as modified by § 55-100, the manager’s nonpossessory lien for the usual and reasonable charges for storage, alteration, or repair performed by the manager upon an aircraft, was valid, perfected, and enforceable. Gold Key Aviation, L.L.C. v. Int'l Jet Charter, Inc., 56 Va. Cir. 421, 2001 Va. Cir. LEXIS 482 (Norfolk Sept. 19, 2001).

Vehicle storage lien. —

Allowing a corporation a lien against a vehicle in the amount it requested, $15 per day for storage since it took possession of the vehicle, would have caused the lien to amount to more than $15,000, would have unjustly enriched the corporation, and would have improperly worked a forfeiture of the vehicle; a lien of $4,560 was allowed pursuant to § 43-32 . S & E v. Empire Fire & Marine Ins. Co., 66 Va. Cir. 13, 2004 Va. Cir. LEXIS 346 (Norfolk June 11, 2004).

§ 43-33. Lien of mechanic for repairs.

Every mechanic who shall alter or repair any article of personal property at the request of the owner of such property shall have a lien thereon for his just and reasonable charges therefor and may retain possession of such property until such charges are paid.

And every mechanic who shall make necessary alterations or repairs on any article of personal property which from its character requires the making of ordinary repairs thereto as a reasonable incident to its reasonable and customary use, at the request of any person legally in possession thereof under a reservation of title contract, chattel mortgage, deed of trust, or other instrument securing money, the person so in possession having authority to use such property, shall have a lien thereon for his just and reasonable charges therefor to the extent of $1,000. In addition, such mechanic shall be entitled to a lien against the proceeds, if any, remaining after the satisfaction of all prior security interests or liens and may retain possession of such property until such charges are paid. In any action to enforce the lien hereby given all persons having an interest in the property sought to be subjected shall be made parties defendant.

If the owner of the property held by the mechanic shall desire to obtain possession thereof, he shall make the mechanic defendant in proceeding in the county or municipal court to recover the property.

The owner may give a bond payable to the court, in a penalty of the amount equal to the lien claimed by the mechanic and court costs, with security to be approved by the clerk, and conditioned for the performance of the final judgment of the court on the trial of the proceeding, and with a further condition to the effect that, if upon the hearing, the judgment of the court be that the lien of the mechanic on such property, or any part thereof, be enforced, judgment may thereupon be entered against the obligors on such bond for the amount due the mechanic and court costs, if assessed against the owner, without further or other proceedings against them thereon. Upon giving of the bond, the property shall be delivered to the owner.

History. Code 1919, § 6443; 1924, p. 638; 1956, c. 558; 1966, c. 458; 1968, c. 395; 1973, c. 492; 1974, c. 166; 1980, c. 598; 1984, c. 396; 1999, c. 533; 2005, c. 280; 2016, c. 397.

Cross references.

As to misdemeanor for defrauding keeper of motor vehicles or watercraft, see § 18.2-189 .

The 1999 amendment substituted “$625” for “$500” at the end of the first sentence of the second paragraph.

The 2005 amendments.

The 2005 amendment by c. 280 substituted “$800” for “$625” in the first sentence of the second paragraph.

The 2016 amendments.

The 2016 amendment by c. 397 substituted “$1,000” for “$800.”

Law Review.

For note, “Effect of the Uniform Commercial Code on Virginia Law,” see 20 Wash. & Lee L. Rev. 267 (1963).

For survey of Virginia commercial law for the year 1969-1970, see 56 Va. L. Rev. 1387 (1970).

Research References.

Virginia Forms (Matthew Bender). No. 6-501 Summons for Lien of Mechanic for Repairs in General District Court; No. 6-502 et seq.

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 100; 12B M.J. Mechanics’ Liens, § 9.

CASE NOTES

This section gives an undisputed possessory lien to the benefitted party limited only to the amounts set forth herein as to prior existing encumbrances. Epperley v. Woodyard, 4 Bankr. 124, 1980 Bankr. LEXIS 5312 (Bankr. W.D. Va. 1980).

Priority of lien over homestead deed. —

See Epperley v. Woodyard, 4 Bankr. 124, 1980 Bankr. LEXIS 5312 (Bankr. W.D. Va. 1980).

§ 43-34. Enforcement of liens acquired under §§ 43-31 through 43-33 and of liens of bailees.

For the purposes of this section, “public place” means a premises owned by the Commonwealth or a political subdivision thereof, or an agency of either, that is open to the general public.

Any person having a lien under §§ 43-31 through 43-33 and any bailee, except where otherwise provided, having a lien as such at common law on personal property in his possession that he has no power to sell for the satisfaction of the lien, if the debt for which the lien exists is not paid within 10 days after it is due and the value of the property affected by the lien does not exceed $10,000, may sell such property or so much thereof as may be necessary, by public auction, for cash. The proceeds shall be applied to the satisfaction of the debt and expenses of sale, and the surplus, if any, shall be paid within 30 days of the sale to any lienholder, and then to the owner of the property. A seller who fails to remit the surplus as provided shall be liable to the person entitled to the surplus in an amount equal to $50 for each day beyond 30 days that the failure continues.

Before making the sale, the seller shall advertise the time, place, and terms thereof in any of the following places: (i) a public place in the county or city where the property is located; (ii) a website operated by the Commonwealth, the county or city where the property is located, or a political subdivision of either; or (iii) a newspaper of general circulation in the county or city where the property is located, either in print or on its website. In the case of property other than a motor vehicle required to be registered in Virginia having a value in excess of $600, 10 days’ prior notice shall be given to any secured party who has filed a financing statement against the property, and written notice shall be given to the owner as hereinafter provided.

If the value of the property is more than $10,000 but does not exceed $25,000, the party having the lien, after giving notice as herein provided, may apply by petition to any general district court of the county or city wherein the property is, or, if the value of the property exceeds $25,000, to the circuit court of the county or city, for the sale of the property. If, on the hearing of the case on the petition, the defense, if any made thereto, and such evidence as may be adduced by the parties respectively, the court is satisfied that the debt and lien are established and the property should be sold to pay the debt, the court shall order the sale to be made by the sheriff of the county or city. The sheriff shall make the same and apply and dispose of the proceeds in the same manner as if the sale were made under a writ of fieri facias.

If the owner of the property is a resident of the Commonwealth, any notice required by this section may be served as provided in § 8.01-296 or, if the sale is to be made without resort to the courts, by personal delivery or by certified or registered mail delivered to the present owner of the property to be sold at his last known address at least 10 days prior to the date of sale. If the owner of the property is a nonresident or if his address is unknown, any notice required by this section may be served by posting a copy thereof in three of any of the following places in any combination: (i) one or more public places in the county or city where the property is located; (ii) one or more websites operated by the Commonwealth, the county or city where the property is located, or a political subdivision of either; or (iii) one or more newspapers of general circulation in the county or city where the property is located, either in print or on their websites.

History. Code 1919, § 6449; 1960, c. 571; 1968, c. 605; 1971, Ex. Sess., c. 155; 1978, c. 59; 1980, c. 598; 1987, c. 37; 1988, c. 227; 1992, c. 111; 1993, c. 759; 1998, c. 868; 2002, c. 401; 2004, c. 369; 2006, cc. 874, 891; 2008, c. 171; 2009, c. 664; 2011, cc. 14, 702; 2014, c. 339; 2016, c. 397; 2019, c. 560.

Cross references.

As to transfer by operation of law a watercraft titling certificate, see § 29.1-717.2. For liens on motor vehicles for garage keepers and mechanics, see § 46.2-644.03 .

Editor’s note.

Acts 2009, c. 664, cl. 3, provides: “That the provisions of this act shall become effective on October 1, 2009.”

The 1998 amendment, effective July 1, 1999, in the third paragraph, substituted “$15,000” for “$10,000” in two places; added the present fifth paragraph; and in the last paragraph, substituted “thirty days” for “ninety days.”

The 2002 amendments.

The 2002 amendment by c. 401 substituted “$5,000” for “$3,000” in the first and third paragraphs.

The 2004 amendments.

The 2004 amendment by c. 369, throughout the section, substituted “10” for “ten” and “30” for “thirty”; substituted “$25” for “twenty-five dollars” in the last sentence of the first paragraph; and inserted “or a nonrepairable certificate” in the fifth and sixth paragraphs.

The 2006 amendments.

The 2006 amendments by cc. 874 and 891 are identical, and in the first paragraph, substituted “$7,500” for “$5,000” in the first sentence and “$50” for “$25” in the third sentence; substituted “$7,500” for “$5,000” in the first sentence of the third paragraph; and substituted “$3,000” for “$1,000” in clause (iii) of the fifth paragraph.

The 2008 amendments.

The 2008 amendment by c. 171 added the last sentence of the second paragraph; added the last paragraph; and made stylistic changes.

The 2009 amendments.

The 2009 amendment by c. 664, effective October 1, 2009, deleted the last four sentences of the second paragraph pertaining to showing of lien for motor vehicles on certificate of title and notification sent to lienholder by mail; and deleted the former last four paragraphs, pertaining specifically to liens on motor vehicles.

The 2011 amendments.

The 2011 amendments by cc. 14 and 702 are identical, and twice substituted “$25,000” for “$15,000” in the third paragraph.

The 2014 amendments.

The 2014 amendment by c. 339, in the first and third paragraphs, substituted “$10,000” for “$7,500.”

The 2016 amendments.

The 2016 amendment by c. 397 substituted “in his possession that” for “in his possession which” in the first paragraph, and in the last paragraph, substituted “the Commonwealth” for “this Commonwealth” in the first sentence and rewrote the second sentence, which read “If he is a nonresident or if his address is unknown, notice may be served by posting a copy thereof in three public places in the county or city wherein the property is located”; and made minor stylistic changes.

The 2019 amendments.

The 2019 amendment by c. 560 transferred the former last sentence to the beginning of the section as the first paragraph; in the third paragraph, inserted “any of the following places: (i)” and “in the county or city where the property is located; (ii) a website operated by the Commonwealth, the county or city where the property is located, or a political subdivision of either; or (iii) a newspaper of general circulation in the county or city where the property is located, either in print or on its website.”

Law Review.

For case comment on the innkeeper’s lien and due process, see 5 U. Rich. L. Rev. 447 (1971).

Research References.

Virginia Forms (Matthew Bender). No. 6-501 Summons for Lien of Mechanic for Repairs in General District Court; No. 6-502 et seq.; No. 8A-1001 Contract Creating a Bailment.

Michie’s Jurisprudence.

For related discussion, see 12A M.J. Liens, § 22.

CASE NOTES

Editor’s note.

The cases cited under this section were decided prior to enactment of § 46.2-644.03 having to do with enforcement of liens on motor vehicles.

The filing of a financing statement to perfect the security interest in a motor vehicle is not required. —

The $600 amount mentioned in the third sentence of this section (see now the second paragraph) has no application to the sale of motor vehicles; that amount relates to a requirement of notice to any secured party who has filed a financing statement against the subject property. The filing of a financing statement to perfect the security interest in a motor vehicle is not required. Instead, the sale of such motor vehicles is governed by the specific provisions of the fourth and fifth sentences of this section. Newport News Shipbuilding Employees' Credit Union, Inc. v. B & L Auto Body, Inc., 241 Va. 31 , 400 S.E.2d 512, 7 Va. Law Rep. 1263, 1991 Va. LEXIS 24 (1991).

Underlying interest not transformed into judicial lien. —

§ 43-34.1. Lien of keeper of hangar or tie-down on aircraft subject to a chattel mortgage.

In the case of any aircraft subject to a chattel mortgage, security agreement, deed of trust or other instrument securing money, the keeper of the hangar or tie-down shall have a lien thereon for his usual and reasonable charges for storage, alteration or repair from the time such lien is perfected as provided herein. Such lien is nonpossessory and shall be deemed a conveyance. To perfect such lien, the following shall be required:

The claim of lien shall be signed, under oath, by the claimant, his agent or attorney;
The claim of lien shall also be filed within 120 days after completion of alterations or repair or accrual of storage charges, as personal property security interests or liens are recorded, with the State Corporation Commission in accordance with the applicable provisions of Part 5 (§ 8.9A-501 et seq.) of Title 8.9A; and
The claim of lien shall also be filed within such 120-day period with the Aircraft Registration Branch of the Federal Aviation Administration.

History. 1993, c. 854.

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Mechanics’ Liens, § 8.

CIRCUIT COURT OPINIONS

Manager found to be keeper. —

Manager was a keeper and a person keeping aircraft within the plain meaning of the word for purposes of establishing a lien on an aircraft where it arranged for and provided hangar space for the owner’s aircraft, coordinated and provided services necessary to maintain and legally operate the aircraft, and, as a lessee, was accountable for all activities that occurred in the hangar and/or tie-down space. Gold Key Aviation, L.L.C. v. Int'l Jet Charter, Inc., 56 Va. Cir. 421, 2001 Va. Cir. LEXIS 482 (Norfolk Sept. 19, 2001).

Recordation of claim with Virginia State Corporation Commission not required. —

Section 55-100 modifies § 43-34.1 by negating the need for filing notice of the claim by the lienor with the Virginia State Corporation Commission; similarly, compliance with § 55-100 rendered the requirements of former § 8.9-403, a Virginia finance statement filing statute, unnecessary. Gold Key Aviation, L.L.C. v. Int'l Jet Charter, Inc., 56 Va. Cir. 421, 2001 Va. Cir. LEXIS 482 (Norfolk Sept. 19, 2001).

§ 43-35. How and when validity of lien, or claim of other person to property, is tried.

Any person may file his petition, at any time before the property is sold or the proceeds of sale are paid to the plaintiff under the judgment of the court, disputing the validity of the plaintiff’s lien thereon, or stating a claim thereto, or an interest in or lien on the same, and its nature; and the court shall inquire into such claim, and if it be found that the petitioner has title to, or a lien on, or any interest in, such property or proceeds of sale, the court shall make such order as is necessary to protect his rights.

History. Code 1919, § 6450; 2005, c. 839.

The 2005 amendments.

The 2005 amendment by c. 839, effective October 1, 2005, deleted “trial justice or” three times preceding “court” and substituted “court” for “the court, as the case may be” preceding “shall inquire.”

Michie’s Jurisprudence.

For related discussion, see 10B M.J. Interpleader, §§ 1, 14.

§ 43-36. Appeals, how taken and tried.

Any party may appeal from the judgment of the general district court, as in case of warrants for small claims under Chapter 6 (§ 16.1-76 et seq.) of Title 16.1, and such appeal shall be heard and determined in like manner, as appeals under such chapter.

History. Code 1919, § 6451; 2005, c. 839.

The 2005 amendments.

The 2005 amendment by c. 839, effective October 1, 2005, substituted “general district court” for “trial justice.”

§ 43-37. Sale of baggage and other personal property held pursuant to § 43-31 or unclaimed.

Whenever any baggage or other personal property is being held by a hotel pursuant to the lien granted by § 43-31 , or where such baggage or other personal property has been voluntarily checked with a hotel, such baggage and other personal property may be sold at public auction for cash after it has been so held or checked and has remained unclaimed for more than sixty days, provided that before such sale is held written notice of such sale stating the date and place thereof and a brief description of such baggage or other personal property and the name of the owner thereof, if known, and the amount of the charges, if any, against the same, is sent by registered mail to such owner, if known, at his last known address, if known, at least ten days prior to such sale, and provided that such notice is publicly posted in the lobby of such hotel at least ten days prior to such sale.

History. 1940, p. 269; Michie Code 1942, § 6451b.

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Hotels, Inns and Restaurants, § 4.

§ 43-38. Withdrawal from such sale upon payment of charges, interest and expenses.

Such baggage or other personal property shall be withdrawn from sale and released to the owner thereof upon payment to such hotel, at any time prior to such sale, of the debt or charges, if any, against the same, with legal interest thereon and the expenses incurred in preparation for such sale prior to such payment.

History. 1940, p. 270; Michie Code 1942, § 6451c.

§ 43-39. Distribution of proceeds of sale.

The proceeds of sale shall be applied to the expenses of such sale, including the expense of notices, and to the satisfaction of the debt or charges, if any, with legal interest against such baggage or other personal property. The surplus, if any, shall be paid by the hotel to the owner of such baggage or other personal property, upon written application filed with such hotel by the owner within thirty days after such sale. If no such application is so filed, then such hotel shall pay over such surplus to the State Treasurer, who shall credit the same to the Literary Fund. Compliance by a hotel with the provisions of this and the two preceding sections (§§ 43-37 , 43-38 ) shall be a complete bar and defense to any claim that may thereafter be made by anyone against such hotel on account of such baggage or other personal property.

History. 1940, p. 270; Michie Code 1942, § 6451d.

§ 43-40. Subsequent payment of surplus proceeds to persons entitled thereto.

At any time within ten years after the payment into the state treasury of the surplus proceeds of any such sale as provided in the preceding section (§ 43-39 ), the former owner or owners of the property so sold, upon evidence of such ownership satisfactory to the Comptroller, shall be paid the principal amount of such surplus proceeds so paid into the state treasury out of any moneys held in reserve on the books of the Department of Accounts for the benefit of the Literary Fund upon warrant of the Comptroller. If any such claim be disallowed in whole or in part by the Comptroller, it may be recovered in the manner and subject to the conditions and limitations provided in §§ 8.01-192 through 8.01-195 and 8.01-255 for recovering claims against the Commonwealth.

History. 1940, p. 270; Michie Code 1942, § 6451e.

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Hotels, Inns and Restaurants, § 4.

Chapter 5. Liens on Offspring of Certain Animals.

§ 43-41. Lien on offspring of stallion or jackass.

When the owner of a mare or jennet breeds the same to any stallion or jackass whereby such mare or jennet shall become in foal and is delivered of a live colt, the owner of any such stallion or jackass shall have a lien upon the colt for a period of twelve months, or until the price agreed upon for the season or service by the owner of the stallion or jackass and the owner of the mare or jennet be paid. Such lien shall not extend for a longer period than twelve months, and after judgment has been taken for the amount of such fee, then, unless the same is paid, the officer in whose hands the fieri facias is placed for collection may proceed to levy on and sell such colt for the aforesaid fieri facias and costs, and he shall be entitled to the same fees for his services as is provided for by the existing law.

History. Code 1919, § 6446; Tax Code, § 439.

Michie’s Jurisprudence.

For related discussion, see 1B M.J. Animals, § 8.

§ 43-42. Recordation of lien given by preceding section.

The lien given by the preceding section (§ 43-41 ), if reduced to writing, shall be recorded in the miscellaneous lien book and shall be operative from the recordation thereof and if the lien is not reduced to writing, it shall, upon application of the owner of the stallion or jackass, be recorded by the clerk of the circuit court of the county in which the foal is foaled in such book in the following form:

(giving the name of the owner of the stallion or jackass) versus (giving the name of the owner of the colt). The owner of the stallion or jackass claims a lien on a colt less than twelve months old for $. . . . . . . . . . ., for the get thereof.

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History. Code 1919, § 6446; 1994, c. 432.

Cross references.

For requirement that liens be recorded in the general deed book and indexed in the general index of deeds, see § 43-4.1 . As to fee for recordng a lien, see § 17.1-267 .

Michie’s Jurisprudence.

For related discussion, see 1B M.J. Animals, § 8.

§ 43-43. Lien on offspring of bull.

A person owning a bull in this Commonwealth shall have a lien on the get of such bull for the period of six months from the date of the birth of such get, for the price agreed upon between him and the owner of any cow served by such bull; however, this lien shall not hold good as against an innocent purchaser for value and without notice, except when the lien has been admitted to record, which may be done in the following form:

. . . . . . . . . . . . . . . . . . . . . . (giving the name of the owner of the bull) versus (giving the name of the owner of the calf). The owner of the bull claims a lien on a calf less than six months old for $. . . . . . . . . . . . . . . ., for the get thereof. It shall be the duty of the clerk of the county in which the calf is calved to place the same on record in the miscellaneous lien book.

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History. Code 1919, § 6447; Tax Code, § 439; 1994, c. 432.

Cross references.

For requirement that liens be recorded in the general deed book and indexed in the general index of deeds, see § 43-4.1 . As to fee for recordng a lien, see § 17.1-267 .

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 97.

Chapter 6. Liens of Chattel Deeds of Trust Upon Crops, Farm Machinery, etc.

§§ 43-44 through 43-61.

Repealed by Acts 1964, c. 219.

Chapter 7. Miscellaneous Liens.

§ 43-62. Lien for farm products consigned to commission merchant.

Whenever any farm products shall have been consigned to any commission merchant for sale, and he shall have made sale thereof and become insolvent or die before paying over the proceeds of the sale thereof to, or on account of, the consignor or owner of the farm products, the claim of such consignor or owner, when legally proved, shall be a lien on the estate of the commission merchant subject only to such liens as were created on the estate and recorded prior to his insolvency or death.

The benefit of this section shall not accrue to any consignor or owner who, without requesting payment, shall allow such proceeds to remain with such commission merchant at interest, nor to any consignor or owner who, without requesting payment, shall allow such proceeds to remain in the hands of such commission merchant more than 30 days after becoming informed of such sale.

Jurisdiction is hereby given to circuit courts to enforce the provisions of this section.

History. Code 1919, § 6448; 2005, c. 681.

The 2005 amendments.

The 2005 amendment by c. 681, effective January 1, 2006, substituted “to circuit courts” for “to courts exercising circuit court powers in chancery” in the last paragraph and made a minor stylistic change.

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, §§ 99, 100.

§ 43-63. Lien for cleaning, laundering, dyeing, pressing or storing clothing, rugs and other fabrics.

Every person, firm, association and corporation engaged in the business of cleaning, laundering, dyeing and pressing or storing clothing, carpets, rugs and other fabrics shall have a lien upon such clothing, carpets, rugs or other fabrics for the amount which may be due for the cleaning, dyeing, pressing or storage thereof, and may retain such clothing, carpets, rugs or other fabrics until such amount is paid.

If the debt for which a lien is given under this section be not paid within ninety days after it is due, the property subject to such lien, or so much thereof as may be necessary to satisfy such lien, may be sold by the person, firm, association or corporation holding such lien at public auction for cash, and the proceeds of such sale applied to the expenses thereof, and to pay the debt, and the surplus, if any, shall be paid to the owner of such property. Before making such sale the person, firm or corporation holding such lien shall give ten days’ written notice thereof by registered mail sent to the last known post-office address of such owner, and, in addition thereto, shall advertise the time and place thereof in such manner as to give it reasonable publicity; provided that if the owner at the time of leaving such property to be cleaned, laundered, dyed, pressed or stored is given a ticket or other receipt therefor which bears on its face in type not smaller than eight point the words, “The property evidenced hereby may be sold if unclaimed after one hundred and eighty days except in the case of stored property which shall not be subject to sale until such property is unclaimed for two hundred forty days,” then notice of sale by mail and other advertisement shall not be required. A copy of this section shall be prominently displayed in the place of business in which any such property is left by the owner.

History. 1938, p. 613; Michie Code 1942, § 6451a; 1964, c. 272; 1973, c. 317.

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 97.

§ 43-63.1. Repealed by Acts 2003, c. 455.

Cross references.

For current provisions regarding lien against ambulance service for negligence, see §§ 8.01-66.2 et seq.

Chapter 8. Miscellaneous Provisions.

§ 43-64. How notices served, acts done, etc., in case of bankruptcy, death or absconding.

Whenever any act is required to be done by, or notice is to be given to, a person mentioned in any section of this title, or of Chapter 17 (§ 8.01-426 et seq.) of Title 8.01, if such person become bankrupt, the act may be done by, or the notice given to, either the bankrupt or his trustee; or if such person die, the act may be done by, or the notice given to, his personal representative; or if he abscond, the notice may be given to any person over the age of sixteen years found at his last known place of business or residence, or if no such person be found there, by posting the same at the front door of such place of business or residence, or at some other conspicuous part of the building, or he may be proceeded against by order of publication as a nonresident of the Commonwealth.

History. Code 1919, § 6442; 1944, p. 338.

§ 43-65. Protection of assignees, transferees or endorsees of debts secured by mechanics’ or crop liens.

Whenever any debt secured on real estate or personal property by a mechanics’ or crop lien has been assigned, transferred, or endorsed to another, in whole or in part by the original payee thereof, such payee, assignee, transferee, or endorsee may cause a memorandum or statement of the assignment to such assignee, transferee, or endorsee to be recorded, which memorandum or statement shall be signed by the assignor, transferrer, or endorser, or his duly authorized agent or attorney, and when so signed and the signature thereto attested by the clerk in whose office such encumbrance is recorded the same shall operate as a notice of such assignment and transfer. Such assignment, transfer, or endorsement shall reference the book and page where the original debt secured on real estate or personal property is recorded. And where such transfer by the payee is so entered in the proper book, subsequent transfers may likewise be entered in the same manner and with like effect. Provided, however, this section shall not apply to conditional sales contracts of personal property.

History. Code 1919, § 6457; 1932, p. 548; 1934, p. 249; 2014, c. 330.

The 2014 amendments.

The 2014 amendment by c. 330 deleted “entered on the margin of the page in the book where such encumbrance securing the same is” following “endorsee to be” in the first sentence, added the second sentence, and substituted “in the proper book” for “on the margin of the proper book” in the last sentence; and made minor stylistic changes.

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Mechanics’ Liens, § 6; 13A M.J. Mortgages and Deeds of Trust, § 80.

§ 43-66. Purchaser not affected by liens of Mutual Assurance Society against Fire.

The lien of the Mutual Assurance Society against Fire on buildings in the Commonwealth of Virginia upon property insured therein for quotas assessed against the policies of such property owners shall not be valid against purchasers of such property for valuable consideration without notice of the existence of such insurance, except from the time the Society shall have complied with the provisions of this section. The Society shall have prepared and kept in the clerk’s office of the Circuit Court of the City of Richmond, and of the circuit court of each county and the circuit court of each city in which the Society insures property, a book to be called the “Mutual Assurance Society’s Lien Book.” Such book when left with the clerk shall become a public record and shall be kept open to the inspection of the public. The Society shall have entered in such book a brief description of the property insured by it upon which it claims a lien, the date and amount of the policy and the name of the parties to whom the policy was issued, and the date of the entry shall be made in such book.

History. Code 1919, § 6458.

Chapter 9. Release of Liens.

§ 43-67. Release of mechanic’s lien upon payment or satisfaction.

When payment or satisfaction has been made of a debt secured by a mechanic’s lien it shall be released in the manner provided in §§ 55.1-339 and 55.1-341 , insofar as appropriate.

History. Code 1919, § 6456; 1926, p. 80; 1930, p. 69; 1932, p. 120; 1944, p. 198.

Editor’s note.

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Mechanics’ Liens, § 34.

§ 43-68. Releases made by court.

Any person who owns or has any interest in real estate or personal property on which such lien exists may, after twenty days’ notice thereof to the person entitled to such lien, apply to the circuit or corporation court of the county or corporation in whose clerk’s office such encumbrance is recorded, or to the Circuit Court of the City of Richmond, if it be in the clerk’s office of such court, to have the same released or discharged; and upon proof that it has been paid or discharged, or upon its appearing to the court that more than twenty years have elapsed since the maturity of the lien, raising a presumption of payment, and which is not rebutted at the hearing, or upon proof that no suit, as defined by § 43-17 , has been brought to enforce the same within the time prescribed by such section; such court shall order the same to be recorded by the clerk. Such release shall reference the book and page where the original lien securing such interest in real estate or personal property is recorded.

All releases made prior to June 24, 1944, by any court under this section upon such presumption of payment so arising and not rebutted, shall be validated.

History. Code 1919, § 6456; 1926, p. 81; 1930, p. 70; 1932, p. 121; 1944, p. 199; 2014, c. 330.

The 2014 amendments.

The 2014 amendment by c. 330, in the first paragraph, substituted “recorded by the clerk” for “entered by the clerk on the margin of the page in the book wherein the lien is recorded, which entry, when so made, shall operate as a release of such lien” at the end of the first sentence and added the second sentence.

Michie’s Jurisprudence.

For related discussion, see 15 M.J. Recording Acts, § 6.

§ 43-69. Repealed by Acts 1994, c. 432.

§ 43-70. Release of mechanic’s lien upon payment into court or filing of bond after suit brought.

In any suit brought under the provisions of § 43-22 , the owner of the building and premises to which the lien, or liens, sought to be enforced shall have attached, the general contractor for such building or other parties in interest may, after five days’ notice to the lienor, or lienors, apply to the court in which such suit shall be pending, or to the judge thereof in vacation, for permission to pay into court an amount of money sufficient to discharge such lien, or liens, and the costs of the suit or for permission to file a bond in the penalty of double the amount of such lien, or liens, and costs, with surety to be approved by the court, or judge, conditioned for the payment of such judgment adjudicating the lien or liens to be valid and determining the amount for which the same would have been enforceable against the real estate as may be rendered by the court upon the hearing of the case on its merits, which permission shall be granted by the court, or judge, in either such case, unless good cause be shown against the same by some party in interest.

Upon the payment of such money into court, or upon the filing of such bond, as the case may be, after the court has granted permission for the same to be done, the property affected thereby shall stand released from such lien, or liens, and the money so paid in, or the bond so filed, as the case may be, shall be subject to the final judgment of the court upon the hearing of the case on its merits.

History. 1936, p. 492; Michie Code 1942, § 6437a; 1962, c. 166; 1976, c. 388; 1992, c. 532.

Law Review.

For 2000 survey of Virginia property law, see 34 U. Rich. L. Rev. 981 (2000).

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Mechanics’ Liens, § 53.

CASE NOTES

The holder of a mechanic’s lien that is “bonded off,” pursuant to this section, must still establish the priority of the lien. York Fed. Sav. & Loan Ass'n v. William A. Hazel, Inc., 256 Va. 599 , 506 S.E.2d 315 (1998).

CIRCUIT COURT OPINIONS

Necessary parties. —

Once a mechanic’s lien on an owner’s property was released by the posting of a bond, the owner’s property interest could not be defeated or diminished by the underlying breach of construction contract litigation. The “bonding off” process substituted the bond for the real estate and, under those circumstances, it made no difference whether the property owner remained a nominal party or was released from the lawsuit. Trident Elec., Inc. v. John S. Clark, Inc., 2008 Va. Cir. LEXIS 5 (Roanoke County Feb. 8, 2008).

§ 43-71. Release of mechanic’s lien upon payment into court or filing bond before suit.

At any time after the perfecting of any such lien and before a suit be brought for the enforcement thereof, the owner of the property affected thereby, the general contractor or other parties in interest may, after five days’ notice to the lienor, apply to the court having jurisdiction of a suit for the enforcement of such lien, or to the judge thereof in vacation, for permission to make such payment into court, or to file such bond, as prescribed in § 43-70 , which permission, in either such event, shall be granted by such court, or judge, unless good cause be shown against the same by some party in interest. Upon the granting of such permission, and the payment of such money into court, or the filing of such bond, as the case may be, the property affected thereby shall stand released from such lien.

Such money, or bond, as the case may be, shall be held under the control of the court and shall be subject to the final judgment of the court adjudicating the lien or liens to be valid and determining the amount for which the same would have been enforceable against the real estate in any suit or action thereafter brought for the ascertainment of the rights of the parties in interest, with respect hereto, or, shall be paid out and disposed of as the parties in interest may direct, in the event the matters in controversy with respect thereto be settled and adjusted between the parties without suit or action.

The sureties on any such bond, which may be involved in any suit or action brought under the provisions of this section, shall be made parties to such suit or action.

History. 1936, p. 493; Michie Code 1942, § 6437b; 1962, c. 166; 1976, c. 390; 1992, c. 532.

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Mechanics’ Liens, § 34.

CASE NOTES

The legislative purpose of this section was to facilitate the financing and expedite the completion of construction and repair projects by creating an alternative security device which provides those who supply the labor and materials to those projects protection equivalent to the protection afforded by mechanic’s liens. George W. Kane, Inc. v. Nuscope, Inc., 243 Va. 503 , 416 S.E.2d 701, 8 Va. Law Rep. 2848, 1992 Va. LEXIS 43 (1992).

Necessary parties. —

The owner of property encumbered by a subcontractor’s mechanic’s lien and the trustees and the beneficiary of a deed of trust recorded prior to commencement of the improvements are not necessary parties to the subcontractor’s suit to enforce its lien when that lien has been “bonded off” and released pursuant to this section. George W. Kane, Inc. v. Nuscope, Inc., 243 Va. 503 , 416 S.E.2d 701, 8 Va. Law Rep. 2848, 1992 Va. LEXIS 43 (1992).

Remand from federal court not required. —

Remand was not required under the Princess Lida doctrine where a mechanic’s lien ceased to exist once a bond was posted pursuant to Virginia’s “bonding-off” procedure in § 43-71 , and the action on the bond was simply an in personam contract claim. Pax, Inc. v. Veolia Water N. Am. Operating Servs., 347 F. Supp. 2d 281, 2004 U.S. Dist. LEXIS 24931 (W.D. Va. 2004).

CIRCUIT COURT OPINIONS

Amended pleading time-barred. —

Necessary parties. —

Bond claim was dismissed for failure to name a subcontractor, which as bond principal was a necessary party since a bond had been substituted for a supplier’s mechanic’s lien under § 43-71 ; the subcontractor did not have an opportunity to defend the supplier’s perfection of the mechanic’s lien or a right to present defenses to the bond claim generally. Johnson Controls v. Norair Eng'g Corp., 86 Va. Cir. 138, 2013 Va. Cir. LEXIS 3 (Fairfax County Jan. 10, 2013).