The 150-Day Rule: The Real Deadline For Filing Your Mechanic’s Lien In Virginia
by Brian Loffredo, Esq. If you find Virginia mechanic’s liens confusing, you are not alone. The Virginia Mechanic’s Lien Law is full of deadlines. Read individually, they seem fairly simple. For example, you probably know that, generally, mechanic’s liens must be filed within 90 days of the last day of the month during which you furnished labor and materials to a project or the completion of the project, whichever is sooner. But what you probably do not realize is that the Virginia Mechanic’s Lien Law contains a dangerous rule that, if ignored, can invalidate your entire mechanic’s lien. The rule is commonly known as the “150-Day Rule.” The 150-Day Rule states that a mechanic’s lien cannot include sums due for labor and materials furnished more than 150 days prior to the last date you furnished labor and materials. Because the rule reaches back in time, it is not a true “deadline.” However, its effect is similar to a deadline if your projects last 150 days or more. For example, let’s say you have been furnishing materials on a job for 140 days, and you expect the job to continue. You have not been paid for any of the materials, and you anticipate including all amounts due in your mechanic’s lien. To comply with the 150-Day Rule, you will need to file your lien within 10 days, which marks the end of the 150-day period. Each day you delay filing your lien beyond the 150-day period will result in your losing one day’s worth of materials furnished at the beginning of the project. In this example, your deadline to file a lien is actually 150 days after you began work. As you can probably see, the 150-day Rule’s impact can vary depending on the project, the amount due, any payments received, the date of last work, and so forth. When calculating the labor and materials includable in a mechanic’s lien, it is important to understand that the 150-Day Rule does not concern itself with when you actually invoiced or billed for labor and materials. All that matters is when the labor and materials were “furnished.” Therefore, it is important that you review all job logs, delivery tickets, payroll records and other similar documents to confirm the actual date labor and materials were furnished. Including labor and materials furnished beyond the 150-day look-back period (even by a single day) will render the entire mechanic’s lien invalid and unenforceable. For this reason, the 150-Day Rule is very dangerous to contractors who may not even be aware of its existence. In Smith v. Building Supply, LLC v. Windstar Properties, LLC, 277 Va. 387 (2009), the Virginia Supreme Court addressed a situation where a contractor included in his lien sums for labor and materials furnished beyond the 150-day look-back period. The court re-iterated the dangerous effect of the 150-Day Rule and held that the contractor’s lien was unenforceable because it included labor and materials that were too old. In attempting to salvage its lien, the contractor cited language in the Virginia Mechanic’s Lien Law that excused lien errors caused by “inaccuracies” in the lien itself. The court held that the inclusion of amounts for labor and materials beyond the 150-day look-back period was not an inaccuracy for purposes of the statute, and that the contractor’s lien was worthless. The 150-Day Rule is not a true deadline. However, it commands the same respect. As with other provisions in the Virginia Mechanic’s Lien Law, failure to comply with the 150-Day Rule is fatal and can result in a total loss of your lien and the ability to get paid.
Brian Loffredo is a principal in Offit Kurman’s Baltimore/Washington office. If you have any questions about the content of this article or other construction matters, please contact Mr. Loffredo at 301.575.0345 or firstname.lastname@example.org.