West Virginia Preliminary Notice to Owner

Introduction

Key Things to Know

1. 1

   The delivery rule is one line long. Section 38-2-20 asks for notice in writing given to the owner, before doing any work or furnishing any material or machinery, saying that if the person employing the claimant does not pay, the claimant will look to the owner for payment. No mail class, no receipt and no form are prescribed.

2. 2

   This notice is permissive, not mandatory. The statute uses may, and it states that neglect or failure to file the account and notice within sixty days, where the owner has not required it, shall in no way affect or impair the lien if it be otherwise perfected and preserved. Skipping it does not forfeit lien rights.

3. 3

   What it buys is relief from a filing. A claimant who has given the written notice need not file the account and notice with the owner within sixty days of the last work or the last materials, unless the owner requires it in writing within those sixty days.

4. 4

   Timing is an event, not a day count. The section attaches no number of days to this notice. It contemplates the notice going out before any work is done or any material or machinery furnished, so it precedes performance rather than following it.

5. 5

   The class the section is written for is narrow: any laborer or other person employed to do work or furnish materials or machinery by another who may have contracted with the owner. That is a party hired by whoever holds the owner's contract, not the holder of that contract.

6. 6

   The real exposure for a West Virginia claimant sits in section 38-2-19, not here. The owner may at any time demand an itemized account in writing, and failure to file it within ten days of receiving that demand releases the owner from all responsibility and the property from all lien or charge for everything furnished before the demand.

7. 7

   Section 38-2-21(a) works in a claimant's favor: no payment by the owner to a contractor or subcontractor of any part or all of the contract price may affect, impair or limit the lien of a subcontractor, laborer or materialman, except as the article otherwise provides.

West Virginia Requirements for Preliminary Notice

• Writing to the Owner, and Nothing Else Is Prescribed

  Section 38-2-20 asks only for notice in writing given to the owner. It names no mail class, does not require certified or registered mail or personal service, and prescribes no affidavit or receipt. The article's service machinery, including publication and posting for an absent owner, is written for the later notice of mechanic's lien and should not be applied to this document. Attorney review is available on the method.

• This Notice Is Permissive, and Skipping It Costs No Lien Rights

  The statute says a qualifying claimant may give the notice. It then states that neglect or failure to file such notice and account within sixty days, unless so required to do so, shall in no way affect or impair his lien if it be otherwise perfected and preserved, as provided in this article. A claimant who never sends it does not forfeit its lien by that omission.

• What Giving It Buys: Relief From the Sixty Day Account Filing

  Having given the written notice, it shall not be necessary for that person to file the account and notice with the owner within sixty days of the date of the doing of the last work or of the furnishing of the last of such materials or machinery, unless the owner requires it in writing within those sixty days. The statute's sixty day reference is reproduced in its own words and is not reconciled with section 38-2-19.

• Timing Is an Event, Not a Day Count

  Section 38-2-20 attaches no number of days to this notice. It contemplates the notice being given before doing any work or furnishing any material or machinery, so the moment to send is after engagement and before the first day on site or the first delivery.

• The Class the Section Describes

  Any laborer or other person employed to do work or furnish materials or machinery for the erection, construction, alteration, repair or removal of a building or other structure, or an improvement appurtenant to it, by another who may have contracted with the owner. That is a party hired by whoever holds the owner's contract, not the holder itself. Because the notice is permissive, no exemption is needed from it.

• One Recipient: The Owner

  The notice goes to the owner of the building, other structure or improvement. Section 38-2-20 names nobody else, so there is no required copy to the general contractor who hired the claimant and no construction lender on the list.

• The Owner Can Demand an Itemized Account, and Ten Days Is the Real Deadline

  Section 38-2-19 lets the owner at any time, by notice in writing, require an itemized account showing the dates work was done or materials furnished, the price charged and the nature of the work or materials. Neglect or failure to file it within ten days after receipt of that written demand releases the owner from all responsibility and the property from all lien or charge for all labor done and materials furnished before the demand was given.

• Owner Payments Do Not Normally Shrink the Claim, With a Residential Exception

  Section 38-2-21(a) provides that no payment by the owner to a contractor or subcontractor of any part or all of the contract price may affect, impair or limit a subcontractor's, laborer's or materialman's lien, except as the article otherwise provides. Since July 1, 2015, section 38-2-21(b) makes it an affirmative or partial defense that the owner is not indebted to the contractor, or is indebted for less than the lien amount, on an existing single-family dwelling, a residence built by or under a contract entered into by the owner before occupancy as a primary residence, or a single-family owner-occupied dwelling, excluding a developer or builder of multiple residences except for its own primary residence.