About Virginia Preliminary Notices
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.