“Levelset takes something that is pretty complex and makes it easy.”
$29 for a limited time
On residential projects, general contractors must usually send a preliminary notice.
On residential projects, when Mechanic Lien Agent identified in building permit, preliminary notice is required.
General contractors are not required to send preliminary notice on public projects.
Since GCs will not make a claim against their own bond for non-payment, they do not have bond claim rights, and have no preliminary notice requirement.
On residential projects, subcontractors and suppliers must usually send a preliminary notice.
On any private project, subcontractors and suppliers can also send an optional notice to make the owner and/or GC personally liable.
Subcontractors and suppliers are not required to send notice on public projects.
However, sending a preliminary notice even when not required increases transparency and streamlines the payment process.
There are potentially two different types of preliminary notices that can be used on private construction projects in Virginia. One of which is required on residential projects, while the other is optional to make the owner or general contractor personally liable.
Notice to Lien Agent
On residential projects (1-2 family residential dwellings) If the building permit designates a mechanics lien agent, all potential claimants must serve a Notice to Lien Agent to secure lien rights.
43-11 Notices
On all other types of private projects, all potential lien claimants (other than general contractors) who wish to make the owner and/or general contractor personally liable to the claimant must provide a “43-11 Notice.” Note, that this notice is a two-step process, requiring notice both prior to performance, and after the project’s completion. However, if the potential claimant is okay relying solely on lien rights, and not personal liability, then this notice is purely optional.
Notice to Lien Agent
As the title suggests, this notice must be sent to the mechanics lien agent designated in the building permit on residential construction projects.
43-11 Notices
This type of notice must be sent to the party that the potential claimant wishes to hold personally liable for nonpayment; which includes either the owner, the general contractor, or both,
Notice to Lien Agent
A Virginia Notice to Lien Agent should be served on the lien agent within 30 days of first furnishing labor and/or materials to the project. However, if work commenced prior to the issuance of the building permit, then notice must be served within 30 days of such issuance.
43-11 Notices
No specific time is given for the “pre-work notice” to affect personal liability of the property owner and/or general contractor. But it is probably best practice to provide the notice either before, or shortly after the first date on which the lien claimant furnishes labor and/or materials to the project.
As far as the post-work notice, this must be served within 30 days of completion or termination of the project. However, the sooner the better as the liability will be limited to the unpaid balance due to the claimant’s hiring party.
Notice to Lien Agent
A Virginia Notice to Lien Agent must contain all of the following information:
• Claimant’s name, address, & phone number
• Mechanics Lien Agent name & address
• Prime contractor name & address (If different from claimant)
• Claimant’s license/certificate number, date of issuance, & expiration date (if applicable)
• Building permit number
• Description of property (as it appears on the building permit)
• Description of labor and/or materials provided
→ Download a free Virginia Notice to Lien Agent form here
43-11 Notices
The Virginia 43-11 Notices should general include the following information:
• Claimant’s information
• General contractor’s information
• Property description
• Nature and character of the claimant’s contract
• Probable amount of the claim
Note: the “post-work notice” requires the same information as above, except it must include:
• Updated actual amount due
• Verified by affidavit
Both types of notices in Virginia must be served personally, or if mailed, then by certified or registered mail with return receipt requested.
Notice to Lien Agent
A Notice to Lien Agent is generally considered upon receipt. However, if the mail is not accepted, the receipt showing delivery of the notice is prima facie evidence that service has been completed.
43-11 Notices
In order to make the owner and/or the general contractor personally liable, this notice must be actually received.
• See: Mailing Construction Notices- Is notice served when mailed or received?
Notice to Lien Agent
Failure to send a Notice to Lien Agent within the 30-day timeframe isn’t fatal to a claimant’s rights, but it will limit the amount of protection. Late notice will cover any labor and/or materials furnished on the date the notice was given, and everything thereafter.
43-11 Notices
Since there is no specific deadline for the pre-work notice, there is no penalty. But, later notice can limit the amount recoverable, as the claim cannot exceed the amount the claimant could file a mechanics lien for, which is the unpaid balance to the hiring party in Virginia.
Failure to send the post-work notice within 30 days of the project completion or termination will eliminate the owner and/or general contractor’s personal liability.
No one needs to send a preliminary notice on public projects in Virginia to retain the right to make a claim against the contractor’s payment bond.
However, sending a general preliminary notice identifying who you are and what you’re contributing to the project can help promote visibility and communication on a project.
• See: Why You Should Send Preliminary Notice Even If Its Not Required
Since notice isn’t required, it’s generally best practice to send notice to the prime contractor that posted the payment bond, and the surety who posted the bond, if known. If unknown, then a request for a copy of the bond should be included in the notice to the contractor.
There should not be another step. If a lien is not enforced within the time frame it becomes dead letter. However, some title companies will request a release be recorded.
If you are solely a material supplier and do not provide labor to install anything or build anything, no license is required.
Virginia is a state with an interesting preliminary notice scheme, and interesting potential preliminary notice requirements. Generally, preliminary notice is not required in Virginia – and is only a specific requirement on projects involving a one or two family residential dwelling when the owner-occupant identifies a lien agent to whom preliminary notice must be given. On all other projects, or if the residential owner-occupant fails to identify a lien agent, preliminary notice is not specifically required, but it may be of benefit.
If, on a residential project, a property owner appoints and identifies a “mechanics lien agent” all project participant must provide preliminary notice to the mechanics lien agent within 30 days of first providing service or labor for a project or 30 days from the date that the building permit was issued. Labor or materials provided prior to providing preliminary notice cannot be included in the lien.
On all other projects, or residential projects on which the property owner did not identify a mechanics lien agent, preliminary notice can be provided by project participants who want to make the owner and/or direct contractor personally liable to the noticing project participant.
The ability to make the owner or GC personally liable is a unique aspect of Virginia law, and the notices required to do so are set forth by Section 43-11. The notices themselves are unique here, in that both a preliminary 43-11 notice and a “post-work” 43-11 notice are required in order to impose personal liability on the owner or GC.
The first step is to read the guide to preliminary notices in Virginia. The guide walks you through everything you need to know about preliminary notices in Virginia, including what information you need to include, the conditions under which notice must be sent, the deadlines for sending notice, and who you need to send the notice to.
There are two main preliminary notices in Virginia, the notice to mechanics lien agent and the notice to owner. You can download the correct form for free by following the links. Levelset’s free forms were written by construction attorneys to meed the strict language and formatting requirements under Utah construction law, making this part easy to get right for you.
When preparing your preliminary notice form, it’s important to double check your information and make sure it’s completely accurate. That’s because making a mistake when filling the form out could result in the loss of your right to file a Virginia mechanics lien down the line. Be careful!
The last step is to deliver your preliminary notice. In Utah, notices must be sent via certified mail, return receipt requested.
Send your notice to the proper parties within the proper deadline, and keep the receipt to prove the notice was correctly delivered.
Select Preliminary Notice document.
Provide basic job information.
Levelset sends the document for you. Postage included!