Does a Virginia general contractor's mechanic's lien get invalidated because the lien claimant didn't separately file the required certification of mailing, even when the property owner actually received the notice?

Plain-English summary

Virginia's mechanic's lien statute, § 43-4, requires that a general contractor who files a memorandum of lien also file "along with the memorandum of lien, a certification of mailing of a copy of the memorandum of lien on the owner of the property at the owner's last known address." Senator Cuccinelli asked whether a notice that was recorded with the lien, that showed the owner's address and a certified mail number on its face, and that was actually received by the owner, satisfied that statutory requirement.

Acting Attorney General William Mims concluded that it did not. The Supreme Court of Virginia decided this exact issue in Britt Constr. v. Magazzine Clean, LLC (2006), holding that § 43-4's certification of mailing requirement must be strictly construed and that failure to comply invalidates the lien. The AG noted the harshness of the result but said the statute, as interpreted by the Court, did not permit a different answer.

The opinion also addressed § 43-15, which excuses certain "inaccuracies" in a memorandum if the property can still be reasonably identified. The AG concluded that § 43-15 does not apply to a missing certification of mailing because what is missing is not an "inaccuracy" but rather an "omission" of an entirely separate filing requirement. The Court in Britt Construction had been emphatic that "the certification of mailing is not merely a notice provision."

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

A mechanic's lien is a way to secure payment for work or materials furnished to improve real property. The lien is given by § 43-3, and § 43-4 sets requirements for filing the memorandum of lien. The opinion notes that, within the parameters of § 43-21, a mechanic's lien receives priority over most other liens.

For general contractors specifically, § 43-4 imposes an additional perfection requirement: along with the memorandum of lien, the general contractor must file a "certification of mailing of a copy of the memorandum of lien on the owner of the property at the owner's last known address." A notice showing the owner's address and a certified mail number, without stating that the claimant certifies the mailing, does not meet this requirement.

Section 43-15 provides that "[n]o inaccuracy in the memorandum filed, or in the description of the property to be covered by the lien, shall invalidate the lien, if the property can be reasonably identified by the description given and the memorandum conforms substantially to the requirements of §§ 43-5, 43-8 and 43-10, respectively, and is not willfully false." But § 43-15 covers inaccuracies, not omissions.

The Supreme Court of Virginia's decision in Britt Constr. v. Magazzine Clean, LLC (2006) construed the certification requirement strictly. The Court invalidated mechanic's liens where certifications of mailing were not filed along with the memoranda of liens. It said "the certification of mailing is not merely a notice provision."

What the AG concluded

Section 43-4 is strictly construed. Because mechanic's liens are creatures of statute and in derogation of the common law, the Supreme Court applies strict construction to questions about their existence and perfection.

The notice format described does not satisfy the certification requirement. A notice that shows the owner's name and address and a certified mail number, but does not separately certify that the lien was mailed, is missing the certification, not just inaccurate about it.

Actual notice to the owner does not save the lien. Britt Construction expressly held that the certification of mailing is more than a notice provision; it is a substantive perfection requirement. The owner's actual knowledge of the lien does not substitute for the missing certification.

Section 43-15 does not apply. What is missing is an omission of a required document, not an inaccuracy within an existing document. Reliable Constructors defined "inaccuracy" as "the condition of being inaccurate," and "inaccurate" as containing a mistake or error. A completely missing certification fits neither definition.

Common questions

What does the opinion say a certification of mailing must show?
Section 43-4 requires a general contractor to file a certification of mailing a copy of the memorandum of lien to the owner at the owner's last known address, along with the memorandum. The opinion finds the described notice insufficient because it did not expressly state that the claimant certified mailing the lien to the owner. It does not prescribe a particular form for the certification.

Why is this requirement so strict?
The opinion explains that mechanic's liens are statutory and receive priority over most other liens within the limits of § 43-21. Filing the memorandum alone can encumber property until the lien dispute is resolved. For questions of existence and perfection, the court therefore strictly construes the statutes.

Does this rule apply to subcontractors and suppliers too?
The certification-of-mailing requirement in § 43-4 is specific to general contractors. Other tiers of lien claimants (subcontractors, materialmen) have their own perfection requirements; they should consult their tier's specific statutory rules.

What if the certification was filed a day later?
The opinion does not decide whether filing the certification later would satisfy § 43-4. It quotes the statutory requirement to file the certification "along with the memorandum of lien" and addresses a notice recorded with the lien that lacked certification language.

Can a contractor fix a defective lien?
The opinion does not address whether or how a defective lien may be cured. It concludes that the notice described in the request did not satisfy § 43-4, even though the owner actually received it.

Is the harshness of this rule legislatively fixable?
Yes. The General Assembly could amend § 43-4 to relax the certification requirement or add a curative mechanism. The AG flagged that he was constrained by the Court's interpretation of the existing statute, not stating a policy preference.

Citations

• Va. Code Ann. §§ 43-3, 43-4, 43-15, 43-21 (mechanic's lien statutes)
• Britt Constr. v. Magazzine Clean, LLC, 271 Va. 58 (2006)
• Reliable Constructors, Inc. v. CFJ Props., 263 Va. 279 (2002)
• Rosser v. Cole, 237 Va. 572 (1989)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-005-Cuccinelli.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

July 8, 2009

The Honorable Ken Cuccinelli, II
Member, Senate of Virginia
10560 Main Street, Suite 218
Fairfax, Virginia 22030

Dear Senator Cuccinelli:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire concerning a notice stating that the owner is notified of the filing of a lien which is recorded with a general contractor's mechanic's lien. Such notice shows on its face that it is addressed to the owner at its last known address and lists the certified mail number, but it does not expressly state that the claimant certifies that the lien was mailed to the owner. Specifically, you ask whether such notice is sufficient to satisfy the statutory requirement of § 43-4 that "[a] lien claimant who is a general contractor … also shall file along with the memorandum of lien, a certification of mailing of a copy of the memorandum of lien."

Response

It is my opinion, based upon a recent decision of the Supreme Court of Virginia upon which I am bound to rely,[1] that a notice stating that the owner is notified of the filing of a lien which is recorded with a general contractor's mechanic's lien which merely indicates on its face that it is addressed to the owner at its last known address and lists the certified mail number is not sufficient to satisfy the strict statutory requirement of § 43-4 that "[a] lien claimant who is a general contractor … also shall file along with the memorandum of lien, a certification of mailing of a copy of the memorandum of lien."

Background

You seek an interpretation of § 43-4 regarding whether a lien can be invalidated for not containing particular certification language if the actual notice is received by the property owner. You relate that a notice, which stated the owner was notified of the filing of a lien, was recorded with a general contractor's mechanic's lien. Further, the notice shows on its face that it was addressed to the owner at his last known address and included the certified mail number. You advise that the notice was mailed certified mail to the property owner, and the owner actually received the notice.

Additionally, you note that § 43-15 protects liens from certain inaccuracies in a memorandum, but you question whether the statute would apply to the certification of mailing required by § 43-4.

Applicable Law and Discussion

Section 43-4 provides that:

A general contractor …, in order to perfect the lien given by § 43-3, … shall file a memorandum of lien at any time after the work is commenced or material furnished …. The memorandum shall be filed in the clerk's office in the county or city in which the building, structure or railroad, or any part thereof is located. The memorandum shall show the names of the owner of the property sought to be charged, and of the claimant of the lien, the amount and consideration of his claim, … and giving a brief description of the property on which he claims a lien.… A lien claimant who is a general contractor … also shall file along with the memorandum of lien, a certification of mailing of a copy of the memorandum of lien on the owner of the property at the owner's last known address.

Statutory language is ambiguous when it may be understood in more than one way.[2] An ambiguity also exists when statutory language lacks clarity and precision, or is difficult to comprehend.[3] "The province of [statutory] construction lies wholly within the domain of ambiguity, and that which is plain needs no interpretation."[4] But when statutory language is clear and unambiguous, the plain meaning and intent of the enactment will be given to it.[5] It is my opinion that § 43-4 is free of any ambiguities.

The Supreme Court of Virginia has stated that "[a] mechanic's lien is purely a creature of statute" and is "in derogation of the common law."[6] As a result, when there are questions concerning the existence and perfection of such a lien, the mechanic's lien statutes must be strictly construed.[7] The reason for such a rule is evident from the priority conferred by statute on a mechanic's lien. Within the parameters set forth in § 43-21, a mechanic's lien "leaps to the head of the class," receiving priority over most other liens. It is a powerful device to secure the payment of monies due and owing. The mere recordation of a memorandum of lien is enough to encumber a piece of property until the question of the lien is resolved.

In determining the existence and perfection of mechanic's liens, the statutes must be strictly construed.[8] The situation you present involves a notice which: (1) stated that the owner was notified of the filing of a lien; (2) is recorded with a general contractor's mechanic's lien; (3) showed on its face that it is addressed to the owner at its last known address; and (4) listed the certified mail number. In 2006 in a substantially similar factual context, the Virginia Supreme Court decided that the certification of mailing requirement contained in § 43-4 must be strictly construed.[9] The Court further concluded that failure to comply with such certification requirement invalidated mechanic's liens where the certifications of mailing were not filed along with the memoranda of liens.[10]

Section 43-15 provides that:

No inaccuracy in the memorandum filed, or in the description of the property to be covered by the lien, shall invalidate the lien, if the property can be reasonably identified by the description given and the memorandum conforms substantially to the requirements of §§ 43-5, 43-8 and 43-10, respectively, and is not willfully false.

In considering whether the inclusion of an item in a memorandum of mechanic's lien affidavit that represented reimbursement for a fine was an "inaccuracy" within the meaning of § 43-15, the Virginia Supreme Court accepted the definition of the term "inaccuracy" to mean "'the condition of being inaccurate.'"[11] Further, the Court noted the meaning of the word "inaccurate" to be "'not accurate: as … containing a mistake or error: incorrect, erroneous.'"[12]

You describe a situation where a lien did not contain the particular mailing certification language. Clearly, such situation does not meet the definition of "inaccuracy" adopted by the Virginia Supreme Court.[13] Instead, what you describe constitutes an "omission" of a filing specifically required[14] rather than an "inaccuracy." Therefore, it is my opinion that § 43-15 is not applicable.

Therefore, I must conclude that the subject mechanic's lien does not comply with the requirements of § 43-4 although the property owner actually received notice of the lien. Section 43-4 clearly and unambiguously requires that a general contractor "shall file along with the memorandum of lien, a certification of mailing of a copy of the memorandum of lien on the owner of the property at the owner's last known address." Thus, a mechanic's lien may be invalidated for failure to contain such certification of lien notwithstanding the fact that the property owner received actual notice.[15]

Conclusion

Accordingly, it is my opinion, based upon a recent decision of the Supreme Court of Virginia upon which I am bound to rely,[16] that a notice stating that the owner is notified of the filing of a lien which is recorded with a general contractor's mechanic's lien which merely indicates on its face that it is addressed to the owner at its last known address and lists the certified mail number is not sufficient to satisfy the strict statutory requirement of § 43-4 that "[a] lien claimant who is a general contractor … also shall file along with the memorandum of lien, a certification of mailing of a copy of the memorandum of lien."

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
1:213; 1:941/09-005

1. See Britt Constr. v. Magazzine Clean, LLC, 271 Va. 58, 623 S.E.2d 886 (2006). I recognize that the response to the issue you present appears harsh. If not for the very specific guidance of the Virginia Supreme Court, a different outcome could be argued. However, the statute, as interpreted by the Court, does not permit a different result.
2. Supinger v. Stakes, 255 Va. 198, 205, 495 S.E.2d 813, 817 (1998); Va.-Am. Water Co. v. Prince William County Serv. Auth., 246 Va. 509, 514, 436 S.E.2d 618, 621 (1993); Va. Dep't of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97, 101, 353 S.E.2d 758, 762 (1987).
3. Supinger, 255 Va. at 205, 495 S.E.2d at 817; Lee-Warren v. Sch. Bd., 241 Va. 442, 445, 403 S.E.2d 691, 692 (1991).
4. Winston v. City of Richmond, 196 Va. 403, 408, 83 S.E.2d 728, 731 (1954).
5. Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).
6. Rosser v. Cole, 237 Va. 572, 576, 379 S.E.2d 323, 325 (1989).
7. Id.
8. Id.
9. Britt Construction, 271 Va. at 64, 623 S.E.2d at 889.
10. Id. The court was very specific in its direction stating "that the certification of mailing is not merely a notice provision." Id. at 63, 623 S.E.2d at 888.
11. Reliable Constructors, Inc. v. CFJ Props., 263 Va. 279, 281, 559 S.E.2d 681, 682 (2002) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1139 (1986)).
12. Id. at 282, 559 S.E.2d at 682 (alteration in original).
13. "The act of omitting whether by leaving out or by abstention from inserting or by failure to include or perform." WEBSTER'S NEW INTERNATIONAL DICTIONARY 1574 (1993). I note that the 1993 edition of the Webster's dictionary contains the same definitions for "inaccuracy" and "inaccurate" as the version quoted by the court in Reliable Constructors. See id. at 1139.
14. Britt Construction, 271 Va. at 63-64, 623 S.E.2d at 888-89.
15. See supra note 1.
16. Id.