Self v. Jenkins

34 Va. Cir. 155, 1994 Va. Cir. LEXIS 93

Opinion

By Judge James W. Haley, Jr.

Defendant owner has demurred on several grounds to a Bill to Enforce a Mechanic’s Lien filed by a general contractor. Finding the following ground dispositive, the court need not address others.

The steps a mechanic must take to perfect a lien are set forth in Code § 43-4; the lien claimant must file a memorandum “showing ... the amount... of his claim, and the time or times when the same is or will be due and payable ...” (Emphasis supplied.)

Woodington Electric v. Lincoln Savings, 238 Va. 623, 630, 385 S.E.2d 872, 875 (1989).

Mechanics’ liens did not exist at common law and accordingly “the statutes relating to the existence and perfection of a mechanic’s lien are strictly construed. Clement v. Adams Bros.-Payne Co., 113 Va. 547, 552, 75 S.E. 294, 296 (1912).” Rosser v. Cole, 237 Va. 572, 576, 379 S.E.2d 323, 325 (1989). See also, American Standard Homes Corp. v. Reinecke, 245 Va. 113, 119, 425 S.E.2d 515, 518 (1993).

In the instant case, lienor failed to include in his recorded memorandum any reference to a due and payable date, as is required by Code § 43-4, and as expounded as to form in Code § 43-5, even though the verification executed by claimant included the phrase that the claim “is payable as” set forth in the memorandum.¹

In Wallace v. Brumback, 177 Va. 36, 40, 12 S.E.2d 801, 802 (1941), the court stated that “unless [a mechanic’s lien] is perfected ... in the proper manner, as outlined in the statute, it is lost.” Likewise, “[a]ll the statutory provisions for mechanic’s liens are indispensable, and the omission of any one of them is fatal.” Coleman v. Pearman, 159 Va. 72, 80, 165 S.E. 371, 373 (1932).

Accordingly, the demurrer is sustained and the Bill to Enforce a Mechanic’s Lien is dismissed.

1 Claimant recorded an “augmented memorandum” which did not cure this defect.