West Virginia Mechanics Lien Frequently Asked Questions
It’s easy to file a West Virgina mechanics lien with zlien, the nation’s leading mechanics lien compliance manager and filing service. zlien prepares West Virginia mechanics liens, notices of intent to lien, preliminary notices, lien releases and cancellations, and more. To learn more about West Virginia’s mechanics lien laws, read the frequently asked questions below.
Who Can File a West Virginia Mechanic’s Lien?
In West Virginia, contractors, subcontractors, and suppliers of labor and/or materials to property owners, contractors, or subcontractors, on a project to build, erect, construct, alter, remove, repair or improve a building, structure or improvement is entitled to a mechanic’s lien.
Architects, surveyors, engineers, and landscape architects are also entitled to mechanic’s lien protection in West Virginia.
Note, however, that only parties within the first 3 tiers of the project are entitled to lien rights in West Virginia.
When is the Deadline to File a West Virginia Mechanic’s Lien?
In West Virginia, a potential lien claimant must file a mechanic’s lien within 100 days from the date of the claimant’s last delivery or completion of claimant’s contract. If the due date falls on a holiday the notice is due on the day prior to the due date. The lien must also be received by the owner within the same 100 day time frame.
Do I Need to Send Notice the Lien Was Recorded?
All claimants who do not contract directly with the owner of the property must give a notice to the property owner, or the owner’s agent. All claimants may provide notice that the lien was recorded, and it may be best practice to do so to facilitate payment. The notice is required to be served on the property owner within the same 100 day period in which the lien is required to be filed – there is no requirements as to whether the lien should be recorded first, or whether the notice of the lien should be sent first. Note that the notice provided to the owner is different than the recorded lien.
Can I include Attorney’s Fees, Collection Costs, or Other Amounts in the Lien Total?
No. West Virginia does not generally allow attorney’s fees, lost profits, or other indirect or consequential damages to be included in the lien amount. West Virginia also does not provide for the award of attorney’s fees to the prevailing party in a lien foreclosure lawsuit.
When is the Deadline to Enforce a West Virginia Mechanic’s Lien, or, How Long is My Lien Effective?
In West Virgina, an action to enforce a mechanic’s lien must be initiated within 6 months from filing the lien.
Will My West Virginia Lien Have Priority Over Pre-Existing Mortgages or Construction Loans?
In West Virginia, a mechanic’s lien is governed by the “first-in-time, first-in-right” rule, but relates back to the date of first furnishing of labor and/or material to the project. It is superior to an encumbrance recorded after labor and/or materials were first furnished to the project, and subordinate to encumbrances recorded after that date.
As to competing mechanic’s lien claims, liens of laborers, artisans, mechanics, workmen, and materialmen have first priority, and a lien of a subcontractor takes priority over the lien of a general contractor.
Must the Lien Include a Legal Property Description?
No. In West Virginia, a mechanic’s lien requires a “a description of the building or other structure or improvement appurtenant thereto, into which the materials and labor went, and for which the claim of lien is made, together with a description of the property upon which such improvements are located”. It is sufficient if the property is described with such that it may be readily identified.
Must the West Virginia Lien be Notarized?
Yes. A mechanic’s lien in West Virginia must be notarized to be valid.
Can I File a West Virginia Lien if I’m Unlicensed?
Yes. West Virginia does not impose any additional mandatory licensing requirements in order to claim a mechanic’s lien. However, it is never recommended to perform work for which a license is required without having that license.
Can I File a West Virginia Lien on a Condominium Project?
Yes. A mechanic’s lien may be filed against a condominium project in West Virginia, to the extent you are a party otherwise allowed to file a mechanic’s lien.
Who Cancels the West Virginia Lien if/when I get Paid?
When a lien is satisfied, the lien claimant is required to execute and record a lien release. If the lien claimant refuses, the court may order the lien release.
What Are the Lien Waiver Rules?
West Virginia does not have statutory lien waiver forms, and therefore, you can use any lien waiver forms. Since lien waivers are unregulated, be careful when reviewing and signing lien waivers. See this article: Should You Sign That Lien Waiver?.
West Virginia state law is unclear or silent about whether contractors and suppliers can waive their lien rights before any work on the project begins. Accordingly, you want to proceed with caution on this subject. You can learn more about such “no lien clauses” at this article: Where Can You Waive Your Lien Rights Before Payment?
Do I Need to Send a West Virginia Preliminary Notice?
Preliminary Notice is not required by West Virginia lien law, however, any party may provide the property owner with preliminary notice. If given, the lien claimant is not required to give the owner account and notice within 60 days after the last delivery (this refers to the old lien law).
When do I Need to Send a West Virginia Preliminary Notice?
If sent, the preliminary notice should be provided prior to the furnishing of labor and/or materials.
What if I Send the West Virginia Preliminary Notice Late?
This is an optional notice, so there is no consequence for sending the notice late.
How Should the West Virginia Preliminary Notice be Sent?
There is no specific provision as to how this notice must be sent, but certified mail is sufficient.
Do I Have to Send the West Virginia Preliminary Notice to Someone Other than the Owner?
Is the West Virginia Preliminary Notice Requirement met when sent or delivered?
Notices sent by certified or registered mail are considered delivered when sent.