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TITLE
43 MECHANIC’S AND CERTAIN OTHER LIENS
CHAPTER
1 MECHANICS’ AND MATERIALMEN’S LIENS
43-1 Definitions
43-2 Structures, Materials, etc., Deemed Permanently Annexed
to Freehold
43-3 Lien for Work Done and Materials Furnished; Waiver of
Right to File or Enforce Lien
43-4 Perfection of Lien by General Contractor; Recordation
and Notice
43-4.01 Posting of Building Permit; Identification of Mechanics’
Lien Agent in Building Permit; Notice to Mechanics’
Lien Agent; Effect of Notice
43-4.1 Liens to be Recorded in Deed Books and Indexed in General
Index of Deeds
43-5 Sufficiency of Memorandum and Affidavit Required by §
43-4
43-6 Repealed by Acts 1968, c. 568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
43-8 Sufficiency of Memorandum, Affidavit and Notice Required
by § 43-7
43-9 Perfection of Lien by Person Performing Labor or Furnishing
Materials for a Subcontractor; Extent of Lien
43-10 Sufficiency of Memorandum, Affidavit and Notice Required
by § 43-9
43-11 How Owner or General Contractor Made Personally Liable
to Subcontractor, Laborer or Materialman
43-12 Repealed by Acts 1968, c. 568
43-13 Funds Paid to General Contractor, Subcontractor, Owner-developer,
Etc., Must be Used to Pay Persons Performing Labor or Furnishing
Material
43-13.1 Use of Lien Waiver Form; Forgery or Signing Without
Authority
43-13.2 When Affidavit of Payment Required of Owner Prior
to Sale
43-13.3 Affidavit of Payment Required of Owner Prior to Sale
or Refinance; Penalty
43-14 Repealed by Acts 1968, c. 568
43-14.1 Service of Notices
43-15 Inaccuracies in Memorandum or Description Not Affecting
Lien
43-16 What Owner May Do When Contractor Fails or Refuses to
Complete Building, Etc.
43-17 Limitation on Suit to Enforce Lien
43-17.1 Hearing on Validity of Lien
43-18 Lien of General Contractor to Inure to Benefit of Subcontractor
43-19 Validity and Priority of Lien Not Affected by Assignments
43-20 Extent of Lien Where Owner Has Less Than Fee in Land
43-21 Priorities Between Mechanics’ and Other Liens
43-22 How Liens Enforced
43-23 Priority Among Liens Perfected Under This Chapter
43-23.1 Forfeiture of Lien
43-23.2 Remedies Cumulative
43-67 Release of Mechanic’s Lien Upon Payment or Satisfaction
43-68 Releases Made by Court
43-69 Repealed by Acts 1994, c. 432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
43-71 Release of Mechanic’s Lien Upon Payment Into Court
or Filing Bond Before Suit
CODE OF VIRGINIA
TITLE 43 MECHANIC’S AND CERTAIN OTHER LIENS
CHAPTER 1 MECHANICS’ AND MATERIALMEN’S LIENS
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
in writing 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.
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.
43-3 Lien for Work Done and Materials
Furnished; Waiver of Right to File or Enforce Lien
A. All persons performing labor or furnishing materials of
the value of fifty dollars or more, for the construction,
removal, repair or improvement of any building or structure
permanently annexed to the freehold, and all persons performing
any labor or furnishing materials of like value for the construction
of any railroad, shall have a lien, if perfected as hereinafter
provided, upon such building or structure, and so much land
therewith as shall be necessary for the convenient use and
enjoyment thereof, and upon such railroad and franchises for
the work done and materials furnished. But when the claim
is for repairs or improvements to existing structures only,
no lien shall attach to the property repaired or improved
unless such repairs or improvements were ordered or authorized
by the owner, or his agent. If the building or structure being
constructed, removed or repaired is part of a condominium
as defined in § 55-79.41 or under the Horizontal Property
Act (§§ 55-79.1 through 55-79.38), any person providing
labor or furnishing material to one or more units or limited
common elements within the condominium pursuant to a single
contract may perfect a single lien encumbering the one or
more units which are the subject of the contract or to which
those limited common elements pertain, and for which payment
has not been made. All persons providing labor or furnishing
materials for the common elements pertaining to all the units
may perfect a single lien encumbering all such condominium
units. Whenever a lien has been or may be perfected encumbering
two or more units, the proportionate amount of the indebtedness
attributable to each unit shall be the ratio that the percentage
liability for common expenses appertaining to that unit computed
pursuant to § 55-79.83 D bears to the total percentage
liabilities for all units which are encumbered by the lien.
The lien claimant shall release from a perfected lien an encumbered
unit upon request of the unit owner as provided in §
55-79.46 B upon receipt of payment equal to that portion of
the indebtedness evidenced by the lien attributable to such
unit determined as herein provided. In the event the lien
is not perfected, the lien claimant shall upon request of
any interested party execute lien releases for one or more
units upon receipt of payment equal to that portion of the
indebtedness attributable to such unit or units determined
as herein provided but no such release shall preclude the
lien claimant from perfecting a single lien against the unreleased
unit or units for the remaining portion of the indebtedness.
B. Any person providing labor or materials for site development
improvements or for streets, stormwater facilities, sanitary
sewers or water lines for the purpose of providing access
or service to the individual lots in a development or condominium
units as defined in § 55-79.41 or under the Horizontal
Property Act (§§ 55-79.1 through 55-79.38) shall
have a lien on each individual lot in the development for
that fractional part of the total cost of such labor or materials
as is obtained by using “one” as the numerator
and the number of lots as the denominator and in the case
of a condominium on each individual unit in an amount computed
by reference to the liability of that unit for common expenses
appertaining to that condominium pursuant to § 55-79.83
D; provided, however, no such lien shall be valid as to any
lot or condominium unit unless the person providing such labor
or materials shall, prior to the sale of such lot or condominium
unit, file with the clerk of the circuit court of the jurisdiction
in which such land lies a document setting forth a full disclosure
of the nature of the lien to be claimed, the amount claimed
against each lot or condominium unit and a description of
the development or condominium, and shall, thereafter, comply
with all other applicable provisions of this chapter. “Site
development improvements” means improvements which are
provided for the development, such as project site grading,
rather than for an individual lot. Nothing contained herein
shall be construed to prevent the filing of a mechanic’s
lien under the provisions of subsection A hereof.
C. Any right to file or enforce any mechanic’s lien
granted hereunder may be waived in whole or in part at any
time by any person entitled to such lien.
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 ninety
days from the last day of the month in which he last performs
labor or furnishes material, and in no event later than ninety
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
of the owner of the property sought to be charged, and of
the claimant of the lien, the amount and consideration of
his claim, and the time or times when the same is or will
be due and payable, 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. 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. 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 sums withheld as retainages with
respect to labor performed or materials furnished at any time
before it is filed, but not to exceed ten percent of the total
contract price. The time limitations set forth herein shall
apply to all labor performed or materials furnished on construction
commenced on or after July 1, 1980.
43-4.01
Posting of Building Permit; Identification of Mechanics’
Lien Agent in Building Permit; Notice to Mechanics’
Lien Agent; Effect of Notice
A. 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.
B. If, at the time of issuance, 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 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
building permit number on the building permit, (iii) a description
of the property as shown on the building permit, and (iv)
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.
C. Except as provided otherwise in this subsection, no person
other than a person claiming a lien under §43-3 (b) 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 thirty days of the first date that he performs
labor or furnishes material to or for the building or structure
or (ii) within thirty 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
thirty-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 shall determine from appropriate
authorities whether a permit of the type described in subsection
B above has been issued and the date on which it is 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.
D. 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 §
6.1-2.10, involved in a transaction relating to the residential
dwelling unit.
E. 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.
F. 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.
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.
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: ____________________________
1. Type of materials or services furnished: ____________________________________________________________________
2. Amount claimed: $ _________________________________
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: _________________
___________________ (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.)
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
A. 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. B. Where the property referred to in subsection
A hereof is a time-share unit, as defined by § 55-362,
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.
C. Where the property referred to in subsection A hereof is
a time-share unit, as defined by § 55-362, 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.
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: _____________________________________
1.
Type of materials or services furnished: ______________________________________________________________________
2.
Amount claimed: $ __________________________________
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:
__________
__________________
(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).
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.
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: ____________________________
1. Type of materials or services furnished: ____________________________________________________________________
2. Amount claimed: $ _________________________________
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: _____________________
_____________________ (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 said
_________________________ (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).
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 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, and 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 correct account, verified by affidavit, of
his claim against the general contractor or subcontractor,
for work done or materials furnished and of the amount due,
the owner, or the general contractor, if he alone was notified,
shall be personally liable to the claimant for the 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 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 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 notice
herein required, with such return 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 notice 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 therefore showing delivery to the addressee
shall be prima facie evidence of receipt.
43-12 Repealed by Acts 1968, c. 568
43-13 Funds Paid to General Contractor, Subcontractor, Owner-developer,
Etc., Must be Used to Pay Persons Performing Labor or Furnishing
Material
Any contractor, subcontractor or owner-developer, as defined
in § 54.1-1100, or any officer, director or employee
of such contractor, subcontractor or owner-developer 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
lender to such contractor or owner-developer or by the owner
or his agent, the contractor or 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, shall be guilty of larceny
in appropriating such funds for any other use while any amount
for which the contractor, subcontractor or owner-developer
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,
subcontractor or owner-developer or any officer, director
or employee of such contractor, subcontractor or owner-developer
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, shall be prima facie evidence of intent
to defraud.
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.
43-13.2 When Affidavit 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
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.
43-13.3 Affidavit of Payment Required
of Owner Prior to Sale or Refinance; Penalty
Any person who is the owner of a one-family 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 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 which
causes a monetary loss to any financial institution, title
company, or purchaser shall be punishable as a Class 3 misdemeanor.
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 therefore shall be
prima facie evidence of receipt.
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 willfully false.
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.
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.
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 removed from record.
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.
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.
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.
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 therefore. Nothing contained
in the foregoing proviso shall apply to liens that may be
filed for the construction or removal of any building or structure.
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 therefore, 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.
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.
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.
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.
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 §§ 55-66.3 and 55-66.4, insofar as appropriate.
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 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. 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.
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.
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. |
