West Virginia: Mechanic's Lien Deadlines & Notice Requirements
The short answer
West Virginia's mechanic's lien attaches automatically by operation of law the moment work begins under a qualifying contract — no filing or notice is required before or during the work. Six separate sections give a lien to a contractor, a subcontractor (including one working under another subcontractor), a materialman, and a mechanic or laborer, depending on who they contracted with; architects, surveyors, engineers, and landscape architects get the same lien as whichever of those roles they fill. Every claimant must perfect the lien within 100 days of their own completion, last furnishing, or last work date — but how depends on privity: a contractor or someone else in direct contract with the owner only has to record the notice with the county clerk, while a subcontractor, materialman, or laborer working for someone other than the owner must both serve the owner with notice and record it. A recorded lien then lapses unless suit to foreclose it is filed within 6 months. A homeowner-specific defense, added in 2015, lets an owner of a single-family, owner-occupied dwelling defeat a subcontractor's lien by showing they already paid the general contractor in full.
| Governing law | W. Va. Code Chapter 38, Article 2, 'Mechanics' Liens' (§§ 38-2-1 to 38-2-41) — an older single-article scheme where the lien itself arises automatically by operation of law from performing work or furnishing materials under a qualifying contract; separate 'notice and recordation' sections then govern how each category of claimant perfects and preserves that lien |
|---|---|
| Who can claim a lien | Six separate sections create the lien depending on who the claimant contracted with, plus a catch-all for design professionals: § 38-2-1 (a contractor in direct contract with the owner), § 38-2-2 (a subcontractor under contract with the general contractor 'or with a subcontractor for a part of such work' — reaching a subcontractor's own subcontractor), § 38-2-3 (a materialman supplying the owner directly), § 38-2-4 (a materialman supplying the general contractor or a § 38-2-2 subcontractor), § 38-2-5 (a mechanic or laborer working directly for the owner), and § 38-2-6 (a mechanic or laborer employed by the general contractor or a subcontractor). Section 38-2-6a gives an architect, surveyor, engineer, or landscape architect the same lien as whichever of those six roles they occupy. The statute's own privity chain caps out two tiers below the owner (subcontractor-of-a-subcontractor, or a materialman supplying either of them) — it doesn't reach a third tier |
| Preliminary notice | No notice or filing is required before or during work to create the lien; it attaches automatically by operation of law. West Virginia does have a genuinely optional 'preliminary notice' with a real legal effect (§ 38-2-20): a laborer or other person not in direct contract with the owner may, before starting work, give the owner written notice that they'll look to the owner for payment if their own employer doesn't pay. Sending it isn't required to preserve lien rights, but it exempts the claimant from the owner's separate power (§ 38-2-19) to demand, at any time and in writing, an itemized account of work or materials — someone who ignores that demand for 10 days loses lien rights for everything furnished before the demand, unless they'd already sent the § 38-2-20 notice |
| Deadline to file the lien | 100 days, but the trigger depends on the claimant's category (§ 38-2-7): from completion of the contract for a contractor, from completion of the subcontract for a subcontractor, or from the last date of furnishing materials or performing work/labor for a materialman, mechanic, or laborer |
| Notice of completion effect | No mechanism in Article 2 lets an owner record a notice of completion, substantial completion, or termination to shorten the 100-day perfection window. A related but distinct owner tool exists: at any time, the owner may demand in writing (§ 38-2-19) that a subcontractor, laborer, or materialman file an itemized account; failing to respond within 10 days releases the owner from lien liability for everything furnished before that demand — a use-it-or-lose-it tool tied to the owner's demand, not to project completion |
| Serving the lien on the owner | Splits by privity. A contractor (§ 38-2-8), a materialman supplying the owner directly (§ 38-2-10), and a mechanic or laborer working for the owner (§ 38-2-12) only need to record notice of the lien with the county clerk within the 100-day window — no separate service on the owner, since the owner is already a party. A subcontractor (§ 38-2-9), a materialman supplying a contractor or subcontractor (§ 38-2-11), and a mechanic or laborer employed by a contractor or subcontractor (§ 38-2-13) — none of whom are in privity with the owner — must both give the owner notice of the lien (by any method used to serve a legal notice or summons) and record that same notice with the clerk, both within the 100 days; missing the recordation step 'discharge[s] and avoid[s]' the lien |
| Deadline to sue to foreclose | 6 months after the claimant files notice of the lien in the clerk's office to commence an action in circuit court to enforce it, or the lien is discharged (§ 38-2-34(a)). One claimant's timely-filed suit preserves every other lienholder's rights on the same property, and other lienholders may intervene in that same action rather than filing their own |
| Homestead/residential extras | An affirmative defense added effective July 1, 2015 (identical language appears in both § 38-2-21(b) and § 38-2-34(b)): in any suit to enforce a lien, the owner can defend, fully or partially, by showing the owner isn't indebted to the contractor, or owes less than the lien amount, when the property is (1) an existing single-family dwelling, (2) a residence the owner built or had built before occupying it as a primary residence, or (3) any single-family, owner-occupied dwelling — a carve-out that excludes a developer or builder of multiple residences except for the one they personally occupy. In effect, an owner who already paid the general contractor in full for a qualifying home can defeat a subcontractor's or supplier's lien even though § 38-2-21(a) otherwise says an owner's payment to the contractor doesn't limit a subcontractor's lien |
Compare this rule across all 50 states + DC →
The short answer
West Virginia's mechanic's lien attaches automatically the moment work
begins under a qualifying contract — there's no filing or notice required
before or during the job to create it. Six sections of the statute give a
lien depending on exactly who the claimant contracted with: a contractor
in direct contract with the owner, a subcontractor (including one working
under another subcontractor), a materialman, or a mechanic or laborer.
Architects, surveyors, engineers, and landscape architects get whichever
of those liens fits their role. Every claimant has 100 days from their own
completion, last furnishing, or last work date to perfect the lien — but
exactly how depends on privity with the owner. A contractor or anyone else
who dealt with the owner directly only has to record notice of the lien
with the county clerk. A subcontractor, materialman, or laborer who dealt
with someone other than the owner must both serve the owner with notice
and record it, within the same 100 days. Once perfected, a lien lapses
unless suit to foreclose it is filed within 6 months. A homeowner-specific
defense added in 2015 lets an owner of a single-family, owner-occupied
home defeat a subcontractor's lien by showing they already paid the
general contractor in full.
Requirements one by one
Governing law
West Virginia's private mechanic's lien lives in W. Va. Code Chapter 38,
Article 2, "Mechanics' Liens" (§§ 38-2-1 to 38-2-41). It's structured
differently from a modern comprehensive lien code: the lien itself arises
automatically, by operation of law, the moment a claimant starts work or
furnishes materials under a contract that qualifies under one of six
sections — there's no filing that "creates" it. Separate "notice and
recordation" sections then govern how each category of claimant perfects
and preserves the lien that already exists.
Who can claim
Six sections each define a distinct lien relationship. Section 38-2-1
covers a contractor who erects, builds, alters, or repairs a structure (or
improves the land) "under and by virtue of a contract with the owner."
Section 38-2-2 covers a subcontractor under contract with that general
contractor — "or with a subcontractor for a part of such work," reaching a
subcontractor's own subcontractor one tier further down. Section 38-2-3
covers a materialman supplying the owner directly, while § 38-2-4 covers a
materialman supplying "any general contractor or ... any subcontractor
mentioned in sections one and two" — the same two-tier reach as § 38-2-2.
Sections 38-2-5 and 38-2-6 cover a mechanic or laborer working directly
for the owner, or employed by a general contractor or subcontractor.
Section 38-2-6a folds in architects, surveyors, engineers, and landscape
architects, giving each "a lien for his or her compensation as provided
for in sections one through six ... as a contractor, subcontractor,
materialman, mechanic or laborer, as the case may be." Read together, the
statute's own privity chain stops two tiers below the owner — a
subcontractor of a subcontractor, or a supplier to either of them — with
no explicit reach to a third tier.
Preliminary notice
No claimant has to send anything before or during the work to create the
lien; it exists automatically once the contract and the work exist. But
West Virginia does have a real, named "preliminary notice" with a genuine
legal effect: under § 38-2-20, someone employed by a party other than the
owner (so, not a direct contractor) may, before starting any work, give
the owner written notice that they'll look to the owner for payment if
their own employer doesn't pay. Sending this notice is entirely optional
and isn't required to preserve the underlying lien — but it buys the
claimant an exemption from a separate owner power described next.
Deadline to file the lien
Section 38-2-7 sets a single 100-day perfection window for every
category, but the trigger differs: 100 days from completion of the
contract for a § 38-2-1 contractor, 100 days from completion of the
subcontract for a § 38-2-2 subcontractor, and 100 days from the last date
of furnishing materials or performing work/labor for a materialman,
mechanic, or laborer under §§ 38-2-3 through -6. Missing the window
"discharged" the lien for that category.
Notice of completion effect
Nothing in Article 2 lets an owner record a notice of completion,
substantial completion, or termination to shorten the 100-day perfection
window described above. There is a related but different owner tool: at
any time — not tied to project completion — the owner may demand in
writing, under § 38-2-19, that a subcontractor, laborer, or materialman
"file with such owner an itemized account" of what they've furnished.
Ignoring that demand for 10 days "release[s]" the owner "from all
responsibility ... for all labor done and for all materials furnished ...
prior to the giving of such notice." A claimant who already sent the
optional § 38-2-20 preliminary notice is exempt from having to respond to
this demand within the first 60 days after their own last work or
delivery, unless the owner specifically requires it in writing within
that window.
Serving the lien on the owner
Whether the owner must be served separately from recordation splits
cleanly along the privity line drawn in "Who can claim." A contractor
(§ 38-2-8), a materialman supplying the owner directly (§ 38-2-10), and a
mechanic or laborer working for the owner (§ 38-2-12) only have to record
notice of the lien with the county clerk within the 100 days — no separate
service on the owner, since the owner is already a party to the
underlying contract. A subcontractor (§ 38-2-9), a materialman supplying a
contractor or subcontractor (§ 38-2-11), and a mechanic or laborer
employed by a contractor or subcontractor (§ 38-2-13) — none of whom
contracted with the owner — must do both: give the owner notice of the
lien "by any of the methods provided by law for the service of a legal
notice or summons," and separately record that same notice with the
clerk, both within the same 100-day window. Missing the recordation step
"discharged and avoided" the lien outright.
Deadline to sue to foreclose
Once a claimant has filed notice of the lien in the clerk's office,
§ 38-2-34(a) gives them 6 months to commence an action in circuit court to
enforce it, or "the lien shall be discharged." One useful protection: a
timely suit filed by any lienholder "inure[s] to the benefit of all other
persons having a lien ... on the same property," and those other
lienholders can intervene in that same action rather than having to file
their own within the 6 months.
Homestead/residential extras
An amendment effective July 1, 2015 — the identical language appears in
both § 38-2-21(b) and § 38-2-34(b) — gives an owner a real defense against
an otherwise-valid lien. In any suit to enforce a lien, the owner can
raise as "an affirmative defense, or an affirmative partial defense" that
the owner isn't indebted to the contractor, or owes less than the amount
claimed, when the property is an existing single-family dwelling, a
residence the owner had built before occupying it as a primary residence,
or any single-family, owner-occupied dwelling (a carve-out excludes a
developer or multi-home builder, except for the one home they personally
occupy). This matters because § 38-2-21(a) otherwise says a payment the
owner makes to the general contractor doesn't limit a subcontractor's own
lien — the 2015 residential defense is a genuine, narrower exception to
that general rule, letting a homeowner who already paid in full defeat a
subcontractor's or supplier's lien for a qualifying home.
What trips people up
The privity split for owner service is the easiest thing to get backwards:
a contractor who dealt with the owner directly only needs to record the
lien with the clerk, but a subcontractor, sub-tier materialman, or laborer
who never dealt with the owner must ALSO serve the owner separately —
skipping that step doesn't just risk a technical defect, the statute says
the lien is "discharged and avoided." Second, don't assume "no preliminary
notice required" means there's nothing worth sending: § 38-2-20's optional
notice, though it doesn't affect the core lien deadline, buys real
protection from the owner's § 38-2-19 power to unilaterally demand an
itemized account and cut off lien rights for anyone who doesn't respond
within 10 days. Third, the 2015 residential defense doesn't erase a
subcontractor's lien on paper — the lien can still be recorded and even
survive to a lawsuit — but it gives a paying homeowner a real defense at
the enforcement stage that isn't available against a lien on non-owner-
occupied or multi-unit property.
Common questions
Do I need to send a notice before I start work in West Virginia?
No notice is required to create or preserve the basic lien — it attaches
automatically. But if you're not contracting directly with the owner, an
optional written notice under § 38-2-20 can protect you from a later
owner demand for an itemized account.
The owner already paid the general contractor in full. Does that wipe
out my subcontractor lien?
Generally no — § 38-2-21(a) says an owner's payment to the contractor
doesn't limit a subcontractor's lien. The one exception is the 2015
residential defense: if the property is a qualifying single-family,
owner-occupied dwelling, the owner can raise full payment as a defense in
a suit to enforce the lien.
What happens if I miss the 100-day recordation deadline?
The lien is discharged for that category of claimant, regardless of
whether the underlying debt is real. The 100-day period is measured
differently depending on whether you're a contractor, subcontractor,
materialman, or laborer, so check which trigger date applies to you.
Statutes and sources
- W. Va. Code § 38-2-1 (lien of contractor) —
https://web.archive.org/web/20251109155121/https://code.wvlegislature.gov/38-2-1/
(accessed 2026-07-05) - W. Va. Code § 38-2-2 (lien of subcontractor) —
https://web.archive.org/web/20251113172756/https://code.wvlegislature.gov/38-2-2/
(accessed 2026-07-05) - W. Va. Code § 38-2-4 (lien of materialman furnishing supplies to
contractor or subcontractor) —
https://web.archive.org/web/20251016000927/https://code.wvlegislature.gov/38-2-4/
(accessed 2026-07-05) - W. Va. Code § 38-2-7 (necessity and period for perfecting lien; 100-day
windows) —
https://web.archive.org/web/20251216214300/https://code.wvlegislature.gov/38-2-7/
(accessed 2026-07-05) - W. Va. Code § 38-2-20 (preliminary notice to owner; effect) —
https://web.archive.org/web/20251116145602/https://code.wvlegislature.gov/38-2-20/
(accessed 2026-07-05) - W. Va. Code § 38-2-19 (demand of account by owner; discharge of lien for
failure to file account) —
https://web.archive.org/web/20251110194229/https://code.wvlegislature.gov/38-2-19/
(accessed 2026-07-05) - W. Va. Code § 38-2-9 (notice and recordation of subcontractor's lien) —
https://web.archive.org/web/20251118044727/https://code.wvlegislature.gov/38-2-9/
(accessed 2026-07-05) - W. Va. Code § 38-2-8 (notice and recordation of contractor's lien) —
https://web.archive.org/web/20251117192814/https://code.wvlegislature.gov/38-2-8/
(accessed 2026-07-05) - W. Va. Code § 38-2-34 (time to sue to enforce lien; residential
affirmative defense) —
https://web.archive.org/web/20251113181843/https://code.wvlegislature.gov/38-2-34/
(accessed 2026-07-05) - W. Va. Code § 38-2-21 (effect of owner's payment to contractor;
residential affirmative defense) —
https://web.archive.org/web/20251211153519/https://code.wvlegislature.gov/38-2-21/
(accessed 2026-07-05)
Source links
Every statute quoted above, linked, with the date we checked it.