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COVID-19 and Mechanic’s Liens

While Virginians are living under Governor Northam’s executive orders, staying home and limiting unnecessary contact with others, Virginia construction projects are proceeding. With the progress on these projects, deadlines for perfecting and enforcing mechanic’s liens remain. The question then arises whether the recent orders by the Supreme Court of Virginia affect the deadlines for perfecting and/or enforcing mechanic’s liens. Having reviewed these orders, we recommend that contractors, subcontractors, and material suppliers proceed to record and enforce their mechanic’s liens as normal. Better to be safe than to risk losing the benefit of a lien.

As a bit of background, on March 17, the Supreme Court of Virginia issued an Order in response to the COVID-19 virus, declaring a judicial emergency for all state courts in the Commonwealth, in order to protect the health and safety of court employees, litigants, judges, and the general public.[1] The order suspended all non-essential, non-emergency court proceedings in all circuit and district courts, and tolled and extended “all deadlines” for a period of twenty-one days. Then, on March 27, the Supreme Court issued a further Order extending the declaration of judicial emergency through April 26, 2020.[2] The second Order tolled and extended “all applicable deadlines, time schedules and filing requirements,” during the period the order is in effect (until April 26, 2020). This Order also stated that “the courts and clerks’ offices shall remain operational and provide services required by law,” while maintaining health and safety precautions.

From the language of the second Order, it is unclear whether or not the Supreme Court’s extension and tolling of deadlines applies to the statutory deadlines for filing and perfecting mechanics liens. It is possible that the  tolling and extension language in these Orders do not apply to mechanic’s lien deadlines, so contractors, subcontractors, and suppliers are advised not to rely on them, and to continue to perfect and enforce their mechanic’s liens by adhering to the deadlines in Title 43 of the VA Code as before. In short…don’t wait to record or file suit if you can. You do so at great risk.

One exception to this is that some courts may be completely closed in the virus “hot spots.” In this case, we recommend that contractors send a notice to the owner and general contractor, etc. within the 90 day recording period, just to be on the safe side, and record the lien as soon as the Circuit Court Clerk’s office re-opens. Recording and filing should be possible if the Circuit Court Clerk’s office is open.

Today the Roanoke City Circuit Court Clerk announced that she is closing the clerk’s office to walk-in traffic. York County recently closed its courts building for disinfecting after multiple staff members tested positive for the virus. As of this week it is more than limited “hot spots” where clerk’s offices are closing or limiting access. We recommend that before you attempt to record a mechanic’s lien you contact the Circuit Court Clerk in that jurisdiction to make arrangements to timely record the lien, complying with any procedures or processes the Clerk has established.

Mechanic’s liens are a powerful tool. Don’t risk losing your lien rights; record and enforce those mechanic’s liens. Please give us a call if we can answer any questions or help in any way.

[1] The March 17 Supreme Court Order is available at: http://www.courts.state.va.us/news/items/covid/2020_0317_supreme_court_of_virginia.pdf.

[2] The March 27 Supreme Court Order is available at: http://www.courts.state.va.us/news/items/2020_0327_scv_order_extending_declaration_of_judicial_emergency.pdf.

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