In almost every state, the lien claimant must “serve” a copy of the mechanics lien upon the property owner before, simultaneously or immediately after filing. The rules on this vary, and it’s not required in every state. On most occasions, however, the claimant can accomplish service by sending a copy of the mechanics lien by certified mail or certified mail with return receipt requested.
West Virginia has an exceptional rule, however, requiring all those parties who are not in privity of contract with the property owner (i.e. those who contract with a subcontractor or the general contractor) to serve the property owner with the mechanics lien “by any of the methods provided by law for the service of a legal notice or summons.” W. Va. Code sec. 38-2-9
Lien claimants must be very careful about waiting too long to get its lien filed, because the lien must be served upon the property owner within 100 days of last furnishing labor and/or materials to the project (the same time period for filing the mechanics lien itself).
It’s unfortunate that the West Virginia statutes are not more clear about how a lien can be served on the property owner. Simply referring to the “methods provided by law for the service of a legal notice or summons” leaves lien claimants with a laundry list of procedural rules about service of process, which is difficult for a novice to understand and presents a lot of traps for the unwary.
West Virginia Rule of Civil Procedure 4 dictates how a party may serve a civil summons, which can vary a great deal depending on whether the property owner is an individual, a corporation, another type of business entity, or other type of company or organization. You can read Rule 4 and give it your best shot at understanding here. In large part, the statute requires personal delivery for service.
In an old 1911 West Virginia case, Williams & Davisson Co. v. Bailey, the court held that service of a mechanics lien pursuant to WV Code § 56-2-1 was sufficient, which is a little less complex than RCP 4. This rule simply states that service may be made by a sheriff.
Also note another potential trap in the event the property owner cannot be found for service or is a non-resident. In this case, WV Code § 38-2-15 provides as follows:
In the event that any owner, upon whose real estate or improvement thereof it is desired to take a lien under this article, should be a nonresident of this State, or in the event that any officer of this State authorized by law to execute legal process should make return “not found” upon any notice of a mechanic’s lien which may be presented to him for service, then it shall be sufficient service of any such notice of mechanic’s lien upon such nonresident owner, or upon such owner as to whom any such return, of “not found” shall be made by any such officer, to publish a copy of such notice as a Class II legal advertisement in compliance with the provisions of article three [§§ 59-3-1 et seq.], chapter fifty-nine of this Code, and the publication area for such publication shall be the county wherein the real estate lies. A copy of such notice shall also be posted in a conspicuous place upon the property sought to be charged thereby, which publishing and posting shall be sufficient, if commenced within the period provided by this article for the filing of such notice. The costs of such publication may be added to the account for which the lien is claimed, and, if included in the amount mentioned in the recorded notice the lien shall cover such costs.
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