1. OVERVIEW OF MECHANIC’S LIEN LAW
West Virginia law provides statutory protection to all parties that provide labor, equipment or materials for the improvement of real property to secure the payment of the contract price or other compensation therefor.
The statutory provisions regarding such liens have been codified as West Virginia Code §38-2-1, et seq. These statutes have been declared remedial, and are to be liberally construed in order to serve their enacted purpose.
a. Does West Virginia law require any notice or filing prior to the performance of work?
West Virginia law does not require any notice or filing prior to the performance of the work by a contractor, subcontractor, or materialman furnishing supplies to an owner; materialmen furnishing supplies to contractor or subcontractor; mechanic or laborer working for an owner; or a mechanic or laborer working for a contractor or subcontractor. The lien is created automatically. All parties should thoroughly understand their specific rights and obligations as set forth in the statutes in order to protect their lien rights.
W.Va. Code 38-2-1 through 38-2-6.
b. What is the time frame for filing a claim of lien?
Contractors must perfect and preserve their lien within 100 days from completion of the contract, or last supplying materials or performing work on the project.
Subcontractors must perfect and preserve their lien within 100 days from completion of the subcontract, or last supplying materials or performing work on the project.
Materialmen furnishing supplies to owner must perfect and preserve their lien within 100 days from the furnishing of the last of the materials, machinery or other supplies and equipment.
Mechanics or laborers working for an owner must perfect and preserve their lien within 100 days from the date of the performing of the last work and labor.
Materialmen furnishing supplies to a contractor or subcontractor must perfect and preserve their lien within 100 days from the date of the furnishing of the last of the materials, machinery, or other equipment or supplies.
Mechanics or laborers working for a contractor or subcontractors must perfect or preserve their lien within 100 days from the date of the performing of the last of the work and labor.
W.Va. Code 38-2-7.
c. Does West Virginia law impose mandatory notice requirements?
Yes. Subcontractors must provide the owner with a notice of lien within 100 days after the completion of the subcontract. Service of the notice must be by any of the methods provided by law for the service of a legal notice or summons.
W.Va. Code 38-2-9.
d. What is the deadline for filing suit to initiate a lien foreclosure action?
A suit to enforce a mechanic’s lien authorized by W.Va. Law must be brought within 6 months of recording the notice of lien in the Clerk’s office.
W.Va. Code 38-2-34.
e. Does West Virginia law impose special requirements or limitations on lower tier subcontractors or supplies?
Yes. Subcontractors not in privity of contract with an owner must perfect and preserve their lien within 100 days of last performing work or providing materials.
W.Va. Code 38-2-7.
f. When is a contractor or supplier deemed to have last performed work or furnished material so as to trigger the start of the lien filing period?
As to a contractor, completion of the contract; as to a subcontractor, completion of the subcontract; as to a materialman, the last date materials, machinery or other supplies and equipment are provided; as to a mechanic or laborer, the last date of the performing of the last of the work or labor.
g. Does West Virginia provide a procedure for bonding or otherwise removing the claim of lien?
Yes. An owner or other against whom a lien is claimed may apply to court to have the lien released by depositing with the court cash equal to the amount of the lien, plus interest likely to accrue on the lien.
W.Va. Code 38-2-36.
h. What construction project participants are not protected by the lien law?
It appears to most participants in the construction process are protected by the lien law; including contractors, subcontractors, materialmen, mechanics, laborers, architects, surveyors, engineers and landscape architects. The protection, however extends to second tier subcontractors and materialmen; entities further removed from the owner are not protected. If a particular participant cannot demonstrate the criteria to meet any of the statutory classes created by §38-2-1-6A, protection may not be afforded.
W.Va. Code 38-2-1 though 6.