Virginia Notice to the Mechanics' Lien Agent
On a Virginia one- or two-family residential dwelling unit, section 43-4.01 gives the claimant 30 days to notify the mechanics' lien agent named on the posted building permit. A late notice does not bar the lien, it clips it forward. Attorney review available.
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Introduction
Serve this one late in Virginia and the lien is not destroyed, it is clipped. Section 43-4.01(C) says a claimant who misses the window is not barred from claiming a lien or filing a memorandum, provided that such lien is limited to labor performed or materials furnished on or after the date a notice is given. Everything delivered before that date drops out of the claim, which on a house already four months under way is usually most of the money. Never serve at all and the sentence before that one applies instead: no person may claim a lien, file a memorandum or otherwise perfect and enforce a lien with respect to a one or two family residential dwelling unit after failing to notify. The window is 30 days from the first date you perform labor or furnish material to or for the building or structure, or 30 days from the date the building permit is issued if you were already on site before the permit existed. The recipient is the part people get wrong, because it is not the owner. It is the mechanics' lien agent named on the posted building permit, and section 43-1 restricts who that can be to a Virginia-licensed attorney, a title insurance company or licensed title agent, or a bank or savings institution or its service corporation. Two carve-outs are written into subsection C: a claimant under section 43-3(B) for site development improvements, and anyone whose permit designates no agent at all. Virginia separately keeps a permissive instrument it calls a preliminary notice in section 43-11(1), which goes to the owner, the owner's agent or the general contractor and does something quite different. DocDraft builds your Virginia notice from your facts, with attorney review available before you send it.
Key Things to Know
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Virginia's sanction is a forward clip rather than a clean bar. Section 43-4.01(C) lets a late claimant keep a lien provided that such lien is limited to labor performed or materials furnished on or after the date a notice is given to the mechanics' lien agent, so a late notice protects the future and abandons the past.
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A claimant who never notifies at all is in the harder position: subsection C provides that no person may claim a lien, file a memorandum or otherwise perfect and enforce a lien with respect to a one or two family residential dwelling unit after failing to notify the agent identified on the permit.
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The requirement only reaches a one or two family residential dwelling unit whose building permit names a mechanics' lien agent. Where the permit designates no agent, subsection C says nobody is required to comply with it.
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The window is 30 days from the first date the claimant performs labor or furnishes material to or for the building or structure, or 30 days from the date the permit is issued where the labor or materials came first.
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The notice goes to the mechanics' lien agent, not the owner. Section 43-1 limits who may hold that role: a Virginia-licensed attorney at law, 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, or a service corporation, subsidiary or affiliate of one.
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Subsection B allows registered or certified mail or physical delivery, and makes a return receipt or other receipt showing delivery prima facie evidence of receipt. Written evidence that the notice was delivered but not accepted by the addressee counts the same way, so a refused envelope still proves receipt.
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An unposted permit is not an excuse. Subsection C requires a claimant who finds no posted permit, or one with no agent named, to determine from appropriate authorities whether a permit was issued, when, and who the agent is, and obliges the issuing authority to keep that information with its permit records.
Key decisions before you file
Before you file a Preliminary Notice in Virginia, a few decisions shape the document: which option to choose and what each one means. The Preliminary Notice guide walks through them.
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Virginia Requirements for Preliminary Notice
A Late Virginia Notice Clips the Lien Forward
Section 43-4.01(C) provides that failure to notify within the 30 day period shall not bar a person from claiming a lien or filing a memorandum or otherwise perfecting and enforcing a lien, provided that such lien is limited to labor performed or materials furnished on or after the date a notice is given. Send it the day you notice the gap, because that date becomes the boundary of the claim.
Never Notifying at All Removes the Lien Entirely
The first sentence of subsection C is the harder rule: no person other than a section 43-3(B) claimant may claim a lien under Title 43, file a memorandum, or otherwise perfect and enforce a lien with respect to a one or two family residential dwelling unit if that person fails to notify the mechanics' lien agent identified on the building permit.
Thirty Days, With a Permit-Issued Alternative
The window is 30 days from the first date the claimant performs labor or furnishes material to or for the building or structure. Where the labor or materials were first furnished before the building permit issued, the alternative is 30 days from the date the permit is issued. Both dates belong in the job file on day one.
The Recipient Is the Mechanics' Lien Agent, Not the Owner
Notice goes to the mechanics' lien agent then named on the permit or amended permit. Section 43-1 limits that role to a Virginia-licensed attorney at law, a title insurance company authorized to write title insurance in the Commonwealth or its subsidiaries or licensed title insurance agents, or a financial institution authorized to accept deposits, or a service corporation, subsidiary or affiliate of one. Notice to a predecessor agent at the posted address stays good until a successor is named and displayed.
Scope: One or Two Family Residential, With a Named Agent
The duty attaches only to a one or two family residential dwelling unit whose building permit, issued under the Uniform Statewide Building Code, names a mechanics' lien agent. Subsection A requires that permit to be posted conspicuously and continuously until all work is completed, and before any labor is performed or material furnished. Subsection C excuses compliance where the permit designates no agent.
Two Express Exemptions, Plus the Licensing Trap
A person claiming a lien under section 43-3(B), for site development improvements or for streets, stormwater facilities, sanitary sewers or water lines providing access or service to individual lots or condominium units, is outside the requirement. So is anyone whose memorandum of lien is recorded before the permit issues. Separately, section 43-3(D) denies a lien to a person who performs labor without a valid license or certificate or without the proper class of license for the value of the work.
Registered or Certified Mail, or Physical Delivery
Subsection B permits those two methods only. A return receipt or other receipt showing delivery to the addressee is prima facie evidence of receipt, and written evidence that the notice was delivered by the postal service or other carrier to but not accepted by the addressee counts the same way. A refused envelope is proof, so keep the carrier record.
The Five Required Items, and the One Forgiven Slip
Subsection B requires the sender's name, mailing address and telephone number; the sender's Board for Contractors license or certificate number under Chapter 11 of Title 54.1, if any, with its issue and expiry dates; the building permit number on the permit; a description of the property as shown on the permit; and a statement that the sender seeks payment for labor performed or material furnished. An inaccuracy as to the property description does not bar the lien if the property can otherwise be reasonably identified.