Mechanic's Liens - Virginia Attorney General issues opinion regarding certification of notice

By John W. Anderson  

John W. Anderson

The Attorney General of Virginia issued an Opinion July 8, 2009 in relation to the statutory requirements of what must be contained in a Mechanic's Lien Certificate of Mailing in order for the Certificate to be sufficient to notify the real property owner of the lien claim. Section 43-4 of the Code of Virginia, as amended, contains a strict statutory requirement that the Mechanic's Lien Memorandum be filed with a "certification of mailing of a copy of the memorandum of lien" to the real property owner. The opinion deals with what constitutes compliance with this statutory requirement.   The pertinent language from the AG opinion follows:

Issue Presented

You inquire concerning a notice stating that the owner is notified of the filing of a lien which is recorded with a general contractor's mechanic's lien. Such notice shows on its face that it is addressed to the owner at its last known address and lists the certified mail number, but it does not expressly state that the claimant certifies that the lien was mailed to the owner. Specifically, you ask whether such notice is sufficient to satisfy the statutory requirement of § 43-4 that "[a] lien claimant who is a general contractor ... also shall file along with the memorandum of lien, a certification of mailing of a copy of the memorandum of lien."

Response

It is my opinion, based upon a recent decision of the Supreme Court of Virginia upon which I am bound to rely,¹ that a notice stating that the owner is notified of the filing of a lien which 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 that "[a] lien claimant who is a general contractor ... also shall file along with the memorandum of lien, a certification of mailing of a copy of the memorandum of lien."

1See Britt Constr. v. Magazzine Clean, LLC, 271 Va. 58, 623 S.E.2d 886 (2006). I recognize that the response to the issue you present appears harsh. If not for the very specific guidance of the Virginia Supreme Court, a different outcome could be argued. However, the statute, as interpreted by the Court, does not permit a different result.

For additional information on this opinion or other issues regarding mechanic's liens, please contact John W. Anderson at (804) 697-2020.