Don't Think You Need a Title Examination to File a Mechanic's Lien Memorandum?

Think again! A mechanic's lien is a powerful remedy but filing a proper lien requires strict adherence to the laws governing mechanic's liens. One mistake and the lien may be invalid. For this reason, no lien claimant or his or her attorney should contemplate filing a Mechanic's Lien Memorandum without first obtaining a title examination of the real property to be liened. Why?

First, a Mechanic's Lien Memorandum must adequately describe the real property. An inaccuracy in the property description will not invalidate the lien unless the wrong property is identified or the property description includes property not benefited by labor or materials which are the subject of the lien or the property cannot be identified from the description. Statutory provisions for a lien memorandum require a "brief description of the property" on which the claimant intends to file the lien claim. You may be safe in using the street address, the tax parcel number, the lot, block and section numbers of the subdivision or other identifying information from the locality's real property tax office records, but you will be safer still by using the legal description from the deed by which the owner or owners acquired title to the real property.

Second, a Mechanic's Lien Memorandum must identify the legal owner of the real property at the time the lien memorandum is recorded. Any mistake in the identification of the owner can invalidate the lien. Again, this information might be found in the locality's real property tax office records, but how accurate or up to date are those records? Tax records may be restricted in the number of characters that can be placed in a particular field, so that not all owners are reflected in those records. The deed by which the current owner or owners acquired title to the real property is the best source of identifying the true owner of record. In fact, Virginia courts allow lien claimants to rely on the accuracy of official land records such as a deed when preparing a memorandum of lien.

Third, Virginia law requires that a lien claimant provide written notice to the owner of the property that the memorandum of lien is being filed. Although the notice requirements differ between general contractors and lower tier subcontractors, it is important that the legal owner receive notice of the lien. To assure accuracy in giving notice of lien to the correct legal owner, only a title examination will do.

Finally, title to property can change hands or be subdivided at any moment. Accuracy is the key to a valid lien. Therefore, to guard against last minute changes in the status of the property and its title, a title examination should be brought current right up to the point of filing the lien memorandum.

A professional title examination takes time and adds expense to a lien filing. Some may describe proceeding in this manner as the "belts and suspenders approach," but our laws demand precise compliance. Failure to strictly comply results in lien claims being defective and dismissed. Don't let your "mechanic's lien pants" fall down for lack of support. Tighten your belt and hitch up your suspenders - get a professional title examination.

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.