If You Serve the West Virginia Notice Upon the Owner and It’s Late, You Will Lose Your Mechanic’s Lien Rights
What happens to your West Virginia mechanic’s lien if you fail to timely serve the lien upon the project owner? You guessed it; you’d lose your mechanic’s lien!
Securing Mechanic’s Lien Rights in West Virginia
For West Virginia private projects there is an optional preliminary notice that may be served prior to furnishing.
- 38-2-20. Preliminary notice to owner; effect.
Any laborer or other person employed to do any work or furnish any materials… may, before doing any work or furnishing any material or machinery, give the owner of such building or other structure or improvement thereto notice in writing that if he is not paid therefor by the person employing him he will look to the owner for payment…
You should file the lien within 100 days from last furnishing. Unless you contracted directly with the owner, you should also serve a copy of the lien upon the owner within 100 days from last furnishing.
- 38-2-11. Notice and recordation of lien for supplies furnished to contractor or subcontractor.
For the purpose of perfecting and preserving his or her lien, every materialman or furnisher of machinery… within one hundred days after he or she has ceased to furnish the material or machinery or other equipment shall give to the owner or his or her authorized agent, by any of the methods provided by law for the service of a legal notice or summons, a notice of the lien.
Statute is clear, if you fail timely record your lien, the lien will be discharged.
- 38-2-14. Discharge of lien for failure to comply with article.
The failure of any person claiming a lien under this article to give such notice as is required… or the failure of any such claimant of any such lien to comply substantially with all of the requirements of this article for the perfecting and preservation of such lien, within the time provided therefor in this article, shall… operate as a complete discharge of such owner and of such property from all liens for claims and charges of any such contractor, subcontractor, materialman or laborer, for any work claimed to have been performed and for any materials, machinery or other necessary equipment claimed to have been furnished in connection with such work.
1 Day or 14 Days, a Late Lien is Still Late
In Worldwide Machinery LP v. Columbia Gas Transmission, LLC, Columbia Gas Transmission LLC (Columbia), the owner of the Mountaineer Express Pipeline Project, hired Welded Construction Inc., who in turn hired Worldwide Machinery LP (Worldwide) to provide equipment to the project. Worldwide furnished for several months and its last furnishing was October 31, 2018.
On February 22, 2019 Worldwide filed a mechanic’s lien in the amount of $55,028.58. Columbia filed a motion to have the lien discharged claiming Worldwide failed to file its lien timely. The court granted the motion.
The key here is the amount of time between the last furnishing date and the mechanic’s lien filing date. I’ll save you from the math and tell you that February 22, 2019 was 114 days after Worldwide’s last furnishing date of October 31, 2018. Based on the last furnishing date of October 31, 2018, the lien deadline was February 8, 2019, which means Worldwide’s lien was filed 14 days too late.
“This flaw is fatal to plaintiff’s mechanic’s lien claim” according to the court. Because even one day late is one day too many: “Discharge of a lien is required when a party misses the deadline for providing notice by even as little as one day.”
Don’t Be That Guy!
Never assume a court will lean (ha ha) your way. Always carefully track and calculate your deadlines, because missing a day could mean losing a lot!