Legal Question in Real Estate Law in Virginia
Removal of Mechanic's Lien
I have a false claim by a contractor on the property that I have purchased. His claim is based on his dispute with the home builder and has now involved me because I am the property owner. The memorandum of lien was placed upon the completion of his work but he has not enforced the memorandum in any way since the filing. My understanding is that he has 6 months to do so. That date has come and gone and yet my Title ins company says that they dont need to be involved to help because no suit was ever filed. The county will not remove the memo until a release is issued. So, once again, I find myself in the middle with no where to turn. Advise is more than welcome. THanks.
1 Answer from Attorneys
Re: Removal of Mechanic's Lien
The provision which you've alluded to in the Va. Code found in Sec. 43-17 which governs the enforcement of mechanics' liens within a period of six months from the date of perfection does not require that the lien be released if for whatever reason it is not enforced within this period.
If you believe that the lien in invalid and should be removed, your remedy lies in a suit in
equity in the circuit court where your property is located to have a hearing on the validity of the lien(with appropriate notice to the lien claimant)after which the court would rule on its validity and order it removed if it were found to be invalid. Va Code Sec. 43-17.1
Your only other remedy would be to pay the lien claimant(the presumed subcontractor) and then sue as a subrogee the general contractor (home builder)for the amount you paid the subcontractor plus any court costs and reasonable attorney fees which you were required to pay in order to mount the litigation.
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