Payment disputes and delays happen in a construction project more often than anyone would like. If you find yourself struggling to get your delinquent client to pay up, the best course of action is to record a mechanics lien.
When you record a mechanics lien against a property, you make the payment issue public. The record of outstanding debt gets filed among the property’s documents, making it visible to potential financiers and buyers. Since no financier would want to invest in a property riddled with payment issues, the property owners are expected to settle the outstanding debt to get rid of the mechanics lien.
This, among other reasons, is why a mechanics lien is very effective in getting construction professionals paid. However, filing a mechanics lien is not as simple as it seems. In West Virginia, as well as in other states, there is a specific process to follow in order to record a valid mechanics lien. This guide will explain the procedure for filing a West Virginia mechanics lien.
Who can file a mechanics lien in West Virginia?
Construction project participants up to the third-tier have lien rights in West Virginia. These participants include general contractors, subcontractors, and material suppliers. Additionally, architects and surveyors are also allowed to file a West Virginia mechanics lien.
Preliminary notice in West Virginia
West Virginia is one of the states that do not require a preliminary notice prior to filing a mechanics lien. A West Virginia preliminary notice is simply an optional document that you can serve on the property owner.
Why serve a West Virginia preliminary notice?
If you are a general contractor, serving a preliminary notice informs the property owner that you are aware of your lien rights. This way, the property owner will know that you are willing to record a mechanics lien if they do not honor their responsibility of paying you for your services.
If you are a lower-tier participant such as a subcontractor or a material supplier, serving a preliminary notice allows you to establish a direct communication line with the property owner. It informs them that you are part of the project, and if they know who you are, there is a bigger chance that they will be able to track your payments and ensure that you receive them.
When do you serve a preliminary notice?
Even though the preliminary notice is optional in West Virginia, there is a state-prescribed time-frame for serving this document. If you choose to serve a West Virginia preliminary notice, state laws require you to do so before working on a project.
What must be included in your preliminary notice?
A West Virginia preliminary notice may include the following information:
- Your name and address
- The name of the party who hired you
- The name of the property owner
- A description of the property location that is sufficient for identification
- The contract amount or a reasonable estimate of the worth of your services
- A statement saying that you will seek payment if you do not receive it as scheduled
Note that you may also include a statement saying that a mechanics lien may be filed if you do not receive the agreed payment amount.
What happens if you do not serve a preliminary notice?
You will not lose your lien rights or suffer any consequences for failing to send a preliminary notice. It is not a requirement in West Virginia but is nevertheless good to send to ensure that you communicate your rights to the property owner.
When do you file a West Virginia mechanics lien?
Record a West Virginia mechanics lien within 100 days of the date you last furnished services to a project. Failing to meet this deadline will extinguish your lien rights over a project. Be sure to record your mechanics lien in West Virginia within the 100-day timeframe.
How to file a mechanics lien in West Virginia
1. Prepare your West Virginia mechanics lien form
The West Virginia Code has three statutory mechanics lien forms depending on your role in a project.
For general contractors
General contractors must include the following pieces of information in their West Virginia mechanics lien form:
- The name of the property owner
- The amount being claimed
- A description of the project location that is sufficient for identification
- The list of buildings, structures, or improvements to be charged with a mechanics lien
- Date of filing the mechanics lien
- Name of the county where the property is located
- Notary information
The mechanics lien in West Virginia must be notarized prior to filing. The West Virginia mechanics lien form for general contractors must sufficiently be in the following format:
Notice of Mechanic’s Lien.
To………………….
Notice is hereby given, in accordance with the laws of the State of West Virginia, that the undersigned claims a lien to secure the payment of the sum of $……… upon your interest in and to lot number ……… of block number ……… as shown on the official map of the city of ………. (or other adequate and ascertainable description of the real estate to be charged) and upon the following buildings, structures and improvements thereon: (List the buildings, structures or improvements sought to be charged.)
Given under my hand this ……. day of ……….., 20…..
…………………………State of West Virginia,
County of ………………., being first duly sworn, upon his oath says that the statements contained in the foregoing notice of lien are true, as he verily believes.
Taken, subscribed and sworn to before me this ………. day of ……………, 20….
My commission expires …………………….
…………………….(Official Capacity)
For subcontractors
The West Virginia mechanics lien form for subcontractors must have the following details:
- The name of the property owner
- Your name (or the name of the authorized party signing for you)
- The name of the party who hired you
- A description of the nature of the subcontract
- A description of the property location that is sufficient for identification
- The contract price
- The unpaid amount
- The name of the county where the property is located
- Notary information
The West Virginia mechanics lien form for subcontractors must be notarized prior to filing. The mechanics lien form must sufficiently be in the following form:
Notice of Mechanic’s Lien.
To ………………………….
You will please take notice that the undersigned ………………. was and is subcontractor with …………….. who was and is general contractor for the furnishing of materials and doing of the work and labor, necessary to the completion of (here describe the nature of the subcontract) on that certain building (or other structure or improvement as the case may be), owned by you and situate on lot number ……. of block number ………. as shown on the official map of ……………… (or other definite and ascertainable description of the real estate) and that the contract price and value of said work and materials is $…….
You are further notified that the undersigned has not been paid therefor (or has been paid only $………. thereof) and that he or she claims and will claim a lien upon your interest in the said lot (or tract) of land and upon the buildings, structures and improvements thereon to secure the payment of the said sum.
……………………………..State of West Virginia,
County of ………………., being first duly sworn, upon his or her oath says that the statements in the foregoing notice of mechanic’s lien are true, as he or she verily believes.
Taken, subscribed and sworn to before me this ………. day of ………………., 20…..
My commission expires ………………….
……………………………..(Official Capacity)
For material suppliers
The West Virginia mechanics lien form for material suppliers must have the following bits of information:
- The name of the property owner
- Your name
- The name of the party to whom you delivered the materials (or the name of the party who subcontracted you for the project)
- The list of buildings or structure to be charged with a mechanics lien
- A description of the property location that is sufficient for identification
- An itemized account of the materials that you furnished and their prices
- The unpaid amount
- The name of the county where the property is located
- Notary information
As with the other mechanics lien forms, the West Virginia mechanics lien form for material suppliers must also be notarized. The mechanics lien form for West Virginia material suppliers must sufficiently be in the following form:
2. Record the West Virginia mechanics lien
When your mechanics lien form is all signed and notarized, you may now record it in the office of the clerk of the county court where the property is located. Recording a mechanics lien in West Virginia may be done in person by personally visiting the clerk’s office or via mail.
Note that filing a mechanics lien comes with associated filing costs. When mailing your mechanics lien documents, be sure to include the exact amount that will cover the filing fees. It is a good idea to call the office of the clerk beforehand to know how much exactly you need to include in your parcel.
Remember that filing a mechanics lien in West Virginia must be done within 100 days after the completion of your work on a project. This deadline is strictly enforced, so be sure that you record your mechanics lien on time. It is best practice to record a mechanics lien before the 100th day to give you time to notify the property owner about your lien.
3. Notify the property owner that you recorded a mechanics lien
Parties who have no direct contract with the property owner are required by law to serve on the property owner a notice informing them that a mechanics lien has been recorded. This notice is different from the mechanics lien; it is a simple document saying that you recorded a mechanics lien against the owner’s property.
Note that serving this notice must be done within the same 100-day deadline for recording a mechanics lien. If you are required to do this step, you should ensure that the notice is sent out before the 100-day period elapses.
Even though prime contractors are not technically required to notify the property owner about the recorded mechanics lien, it is best practice to still serve them a notice. Doing so may speed up the payment process. Property owners are keener to release payment once a mechanics lien has been filed.
Serving the notice on the property owner may be done by registered mail or certified mail with return receipt requested.
4. Enforce/release the mechanics lien
After filing your West Virginia mechanics lien and notifying the property owner about it, you are almost done! At this point, only two things can happen: either you will get paid or you won’t.
A mechanics lien is a very effective tool for payment recovery, so there is a good chance that you will finally receive your payment. When you do, West Virginia laws require you to record a lien release in the same office where you recorded the mechanics lien. This is to indicate that the mechanics lien has already been satisfied.
If, unfortunately, you do not receive your payment even after recording a mechanics lien, you can enforce your mechanics lien by filing a foreclosure lawsuit. You may be able to recover your payment from the foreclosure sale of the property if you win the lawsuit.
Enforcing a mechanics lien in West Virginia must be done within 6 months of the date when the mechanics lien was recorded. Once this deadline passes, the mechanics lien expires and it is no longer enforceable.
Before enforcing a mechanics lien, consider serving a property owner a Notice of Intent to Foreclose. This notice simply informs them that you plan to file a foreclosure lawsuit if you do not receive your payment. Even though serving a Notice of Intent to Foreclose is not required, it could prompt the property owner to release your payment as they might not want to deal with a full-blown lawsuit.
Important deadlines to remember when filing a mechanics lien in West Virginia
Best practices when filing a mechanics lien in West Virginia
1. Serve a preliminary notice even if not required
There is no preliminary notice requirement for any construction participant in West Virginia, but you are strongly advised to serve one. Serving a preliminary notice establishes communication lines between you and the owner, and it lets them know that you are aware of your lien rights. Nobody wants to deal with a mechanics lien, so they may keep an eye out to ensure that you receive your payment if you serve them a preliminary notice.
2. Do not include attorney costs in the claim amount
The amount that you claim with a West Virginia mechanics lien must be related to the services that you furnished. Do not try to recover attorney costs or lien fees via a mechanics lien; otherwise, your mechanics lien may be rendered invalid. Unfortunately, West Virginia also does not allow you to recover attorney fees through a foreclosure lawsuit.
3. Serve a Notice of Intent to Foreclose before filing a foreclosure lawsuit
A foreclosure lawsuit could eat up your time and resources, so before enforcing a mechanics lien, serve on the property owner an ultimatum in the form of a Notice of Intent to Foreclose. This might get their attention and finally urge them to pay up without your having to go through the legal process for launching a lawsuit.
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