Preliminary Notice in Virginia

Mechanic's liens require strict procedural compliance. To successfully claim a mechanic's lien, the claimant must first provide all entitled parties with the appropriate form of preliminary notice. This is because a mechanic's lien creates an encumbrance, or block on the owner's title, and therefore, the owner and other parties potentially affected by that must receive notice of the process. In Virginia, the form of required notice is served on a party known as a "Lien Agent" as well as on the property owner. A Lien Agent is an appointed individual, usually an attorney or title agent. This Notice to Lien Agent and/or Owner/Agent contains a separate form for notifying each party (or one and not the other).

To draft a Notice to Lien Agent or Owner/Agent, first you will need a copy of the building permit. The building permit for any one- or two-family residential dwelling unit issued pursuant to the Uniform Statewide Building Code must also be conspicuously and continuously posted on the property for which the permit is issued until all the work is completed on the property. Va. Code 43-4.01(A). Ensure that the permit is posted on the property before any labor is performed or any material furnished on the property. Id.

If the building permit contains the name, mailing address, and telephone number of the mechanics' lien agent, any person entitled to claim a lien may use that information to notify the agent named on the permit or amended permit that he seeks payment for labor performed or material furnished. Va. Code 43-4.01(B). This notice should be sent by registered or certified mail or by physical delivery. Id. The Notice must contain the following: (1) the name, mailing address, and telephone number of the person sending such notice, (2) the person's license or certificate number issued by the Board for Contractors, if any, and the date such license or certificate was issued and the date such license or certificate expires, (3) the building permit number on the building permit, (4) a description of the property as shown on the building permit, and (5) a statement that the person filing such notice seeks payment for labor performed or material furnished. Id.

Failure to serve the Notice on a residential project within the required time, can forfeit a claimant's right to a lien. No person other than a person claiming a lien may claim a lien under this title with respect to a one or two family residential dwelling unit if that person fails to notify any mechanics' lien agent identified on the building permit within 30 days of the first date labor was performed or materials furnished to or for the building or structure or 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. Va. Code 43-4.01(C).

To send notice to an Owner/Agent, any subcontractor or person who furnishes labor or material to the general contractor or subcontractor should direct their preliminary notice in writing to the owner or his agent or the general contractor, in a form that states the nature and character of his contract and the probable amount of his claim. Va. Code 43-11(1). The form is almost identical to the 43-4.01, but with some minor differences and is located on the same form after the notice to the lien agent portion.

This article is provided for informational purposes only and should not be relied upon as a substitute for the advice of an attorney. Please contact a Virginia lawyer with any questions about the notice to mechanic's lien agent.

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