A mechanic’s lien lets a contractor or supplier who was not paid attach a claim to the property they improved. On a commercial deal these liens can carry real weight, so let me explain how Virginia’s rules work and how I handle them at closing.
Written by Adam L. Engel, Esq., Principal and real estate attorney at Prime Title & Escrow
If a commercial property has been built, renovated, or improved recently, unpaid construction work can become a lien against the title. Virginia’s mechanic’s lien statute, in Title 43 of the Code of Virginia, gives contractors, subcontractors, and suppliers a powerful remedy, and it runs on strict deadlines. As your settlement agent I check for these liens, clear the ones that exist, and protect you from the ones that could still be filed.
Clearing liens is part of the broader title work I describe in my guide to the commercial title commitment and the ALTA survey.
A mechanic’s lien is a claim recorded against property for unpaid labor or materials. In Virginia a claimant must record a memorandum of lien within 90 days of the last day of the month it last worked, and within 90 days of project completion, and can only claim for work in the prior 150 days. A suit to enforce the lien has its own deadline. Because these liens can take priority based on when work began, they are a central concern on any recently improved commercial property.
What a mechanic’s lien is and who can file one
A mechanic’s lien is a statutory claim against real estate for the value of labor or materials that improved it and were not paid for. In Virginia, general contractors, subcontractors, and certain suppliers can perfect a lien against the property under Title 43 of the Code of Virginia. The lien attaches to the property itself, which means it can become the new owner’s problem if it is not cleared, and ultimately it can lead to a forced sale of the property to pay the claim.
The 90 day deadline to record
A claimant perfects a lien by recording a memorandum of lien in the clerk’s office where the property sits. Under Virginia Code Section 43-4, the memorandum must be filed no later than 90 days from the last day of the month in which the claimant last performed labor or furnished materials, and in no event later than 90 days from the time the project is completed or otherwise terminated. A general contractor also has to send a copy of the memorandum to the owner.
The 150 day look back
Virginia adds a second timing rule that surprises people. A memorandum of lien cannot include sums for labor or materials furnished more than 150 days before the last day the claimant worked on the job before filing. In practice this means a contractor can only capture the most recent 150 days of unpaid work in a single lien, and may file more than one memorandum to cover a longer period. Including amounts outside that 150 day window can invalidate the entire lien, which is one reason these claims are litigated so often.
The strict deadlines protect owners as much as claimants. A lien filed too late, or one that reaches back beyond 150 days, can be challenged. When I review title on a commercial property, I look closely at the timing of any recorded lien, because a defect in how it was perfected can be the key to clearing it.
The deadline to enforce the lien
Recording the memorandum is only the first step. Under Virginia Code Section 43-17, a suit to enforce the lien generally must be brought within six months from the date the memorandum was recorded, or within 60 days from the time the project was completed or otherwise terminated, whichever occurs later. If the claimant does not file suit in time, the lien can no longer be enforced. That deadline matters when a property changes hands while a recorded lien is still outstanding.
Why priority is the real issue
The reason mechanic’s liens loom so large on commercial deals is priority. In Virginia a mechanic’s lien can relate back to when work on the project began, which can put it ahead of a deed of trust recorded later. That is a serious concern for a construction lender, and it is why lenders on building projects want specific title coverage against mechanic’s liens. I coordinate that coverage and the supporting paperwork, which I describe further in my guide to commercial construction loan closings.
How I clear and prevent liens at closing
On a purchase of recently improved commercial property, I look for recorded liens, I review whether any could still be filed within the deadlines, and I obtain the documents the title company needs to insure over the risk. That often includes lien waivers and an owner’s affidavit confirming who did work and whether they were paid. On new construction in particular, this review is essential, a point I make in my guide to buying new construction. The goal is a clean recorded title with no construction claim waiting in the wings.
This matters most where building is active. In the construction corridors of Northern Virginia and in growing markets across Virginia and West Virginia, a property may have had recent work by many trades, and confirming that everyone was paid is a core part of protecting your title.
Send me the details and I will check for mechanic’s liens, review the deadlines, and obtain the waivers and affidavits needed to deliver clean title.
Get Your Free Quoteor call (703) 552-4155Frequently asked questions
What is a mechanic’s lien?
It is a claim recorded against real estate for unpaid labor or materials that improved the property. In Virginia, general contractors, subcontractors, and certain suppliers can perfect one under Title 43 of the Code of Virginia. The lien attaches to the property and can eventually lead to a forced sale if the claim is not paid.
How long does a contractor have to file a lien in Virginia?
Under Virginia Code Section 43-4, a claimant must record a memorandum of lien no later than 90 days from the last day of the month in which it last performed work or furnished materials, and in no event later than 90 days from when the project is completed or terminated.
What is the 150 day rule?
A Virginia memorandum of lien cannot include sums for labor or materials furnished more than 150 days before the last day the claimant worked before filing. A contractor can only capture the most recent 150 days of unpaid work per lien, and including older amounts can invalidate the entire lien.
How long does a contractor have to enforce a lien?
Under Virginia Code Section 43-17, a suit to enforce the lien generally must be filed within six months of recording the memorandum, or within 60 days of project completion or termination, whichever is later. If the claimant misses that deadline, the lien can no longer be enforced.
Why do lenders worry so much about mechanic’s liens?
Because of priority. In Virginia a mechanic’s lien can relate back to when work began, which can place it ahead of a deed of trust recorded later. That threatens a lender’s first position on a construction project, so lenders require title coverage and documentation protecting against these liens.
How do you clear mechanic’s liens at a closing?
I check the title for recorded liens, review whether any can still be filed within the deadlines, and obtain the documents the title company needs, often lien waivers and an owner’s affidavit confirming who worked and whether they were paid. The aim is clean recorded title with no construction claim left open.
This article is general information about commercial real estate closings in Virginia and West Virginia. It is not legal advice for your specific transaction, and your costs and requirements depend on your deal. Please confirm the details with me directly.