Filing a mechanic’s lien appears so simple: filling out and filing in the appropriate court a one-page form memorandum with basic information such as the names of the property owner and the lien claimant, a description of the property to be liened, the type of project and the amount claimed in the lien. Yet, this form is anything but a simple exercise. Because a mechanic's lien is a powerful remedy and is a right that is governed by a number of specific statutes, lien claimants must be accurate in filling out the form and must otherwise comply with timing and notification requirements. Failure to provide correct information or to comply with other requirements for filing a lien memorandum is usually fatal to the validity of the lien.
Effective July 1 of this year, lien claimants must adhere to another requirement: they must be duly licensed by the Virginia Board of Contractors and "the memorandum [of mechanic's lien] shall also contain the claimant's license or certificate number issued by the Board of Contractors…and the date such license or certificate was issued and the date such license or certificate expires." Code of Virginia, §43-4.
The new statutory requirement gives some protection for a claimant who attempts to comply with this new requirement and makes a mistake. It provides that an inaccuracy in the lien memorandum regarding the claimant's license or certificate number or the dates the license or certificate was issued or will expire will not invalidate the lien if the lien claimant can be reasonably identified in the records of the Board of Contractors. However, the statute does not excuse a failure to include any licensing information in the memorandum. Virginia courts have repeatedly invalidated liens for such things as naming the wrong lien claimant, naming the wrong property owner, failing to include accurate information in the affidavit that accompanies the lien or failing to submit a certificate of mailing that a copy of the memorandum was sent to the owner's last known address. Thus, there is a good chance that a court will invalidate a memorandum of lien filed on or after July 1, 2013, that fails to include any of the required licensing information.
Mechanic’s liens are tricky business and this article touches only on a new basic requirement in Virginia mechanic’s lien law. Consultation with legal counsel experienced in this area is recommended.