CHAPTER 568

An Act to amend and reenact §§ 48-2 as amended, 48-8, 48-4, 48-4.1, 48-5,
43-8, 48-10, 48-11, 48-13, 48-20 and 48-21 of the Code of Virginia,
relating to mechanics’ liens, structures, etc. subject thereto, creation,
recordation and perfection thereof, sufficiency of forms for affidavits,
etc., personal liability of owner and general contractor, misuse of funds
and punishment therefor, extent of lien when owner has less than fee
simple, and priorities between such liens and other liens; to amend
the Code of Virginia by adding, in Chapter 1 of Title 48 thereof, sec-
tions numbered 43-13.1, 43-14.1, 43-23.1 and 43-23.2, to prescribe
punishment for forging or signing name of another without au-
thority on lien waiver form, methods for service of notice and acts
effecting forfeiture of lien, and to deem certain remedies cumulative;
and to repeal §§ 48-6, 43-12 and 43-14 of the Code of Virginia, relating
to validation of certain prior recordations, and certain requirements
for recordation and service of notice.

[H 39]

Approved April 4, 1968

Be it enacted by the General Assembly of Virginia:
1. That §§ 43-2 as amended, 43-3, 43-4, 43-5, 43-8, 43-10, 48-11, 43-18,
43-20 and 43-21 of the Code of Virginia be amended and reenacted, and
that the Code of Virginia be amended by adding, in Chapter 1 of Title 43
thereof, sections numbered 43-13.1, 43-14.1, 43-23.1 and 43-23.2, as follows:

§ 43-2. Structures, materials, etc., deemed permanently annexed to
freehold.—For the purpose of this chapter, a well, excavation, sidewalk,
driveway, pavement, parking lot, retaining wall, curb and/or gutter,
breakwater (either salt or fresh water), water system, drainage struc-
ture, filtering system (including septic or waste disposal systems) or
swimming pool shall be deemed a structure permanently annexed to the
freehold, and all shrubbery, earth, sod, sand, gravel, brick, stone, tile, pipe
or other materials, together with the reasonable rental or use value of
equipment and any grading, clearing or earth moving required for the
improvement of the grounds upon which such building or structure is
situated shall be deemed to be materials furnished for the improvement
of such building or structure and permanently annexed to the freehold.

§ 438-8. Lien for work done and materials furnished.—All persons
performing labor or furnishing materials of the value of * fifty dollars
or more, for the construction, removal, repair or improvement of any build-
ing or structure permanently annexed to the freehold, and all persons
performing any labor or furnishing materials of like value for the con-
struction of any railroad, shall have a lien, if perfected as hereinafter
provided, upon such building or structure, and so much land therewith
as shall be necessary for the convenient use and enjoyment thereof, and
upon such railroad and franchises for the work done and materials fur-
nished. But when the claim is for repairs or improvements to existing
structures only, no lien shall attach to the property repaired or improved
unless such repairs or improvements were ordered or authorized by the
owner, or his agent.

§ 43-4. Perfection of lien by general contractor; recordation and
notice.—A general contractor, in order to perfect the lien given by *
§ 48-3, shall file at any time after the work is done and the materia] fur-
nished by him and before the expiration of sixty days from the time such
building, structure, or railroad is completed, or the work thereon other-
wise terminated, in the clerk’s office in the county or city in which the
building, structure or railroad, or any part thereof is, or in the clerk’s
office of the Chancery Court of the city of Richmond, if such building,
structure or railroad, or any part thereof, is within the corporate limits of
the city lying north of James River and including the islands in such
river, or in the clerk’s office of the Hustings Court, Part Two, of the city
of Richmond, if the building, structure or railroad, or any part thereof, is
within the corporate limits of the city lying south of James River, a memo-
randum showing the names of the owner of the property sought to be
charged, and of the claimant of the lien, the amount and consideration of
his claim, and the time or times when the same is or will be due and pay-
able, verified by the oath of the claimant, or his agent, including a state-
ment declaring his intention to claim the benefit of the lien, and giving a
brief description of the property on which he claims a lien. It shall be the
duty of the clerk in whose office such memorandum shall be filed as
hereinbefore provided to record and index the same as provided in
§ 43-4.1, in the name as well of the claimant of the lien as of the owner of
the property, and from the time of such recording and indexing all
persons shall be deemed to have notice thereof. The cost of recording
such memorandum shall be taxed against the person found liable in any
judgment or decree enforcing such lien.

§ 43-4.1. Liens to be recorded in miscellaneous lien books or deed
books and indexed in general index of deeds.—Notwithstanding the pro-
vision of * any other section of this title, or any other provision of
law requiring documents to be recorded in the miscellaneous lien book
or the deed books in the clerk’s office of any court, on and after July one,
nineteen hundred sixty-four all memoranda or notices of liens, in the
discretion of the clerk, shall be recorded in the miscellaneous lien books
or the deed books in such clerk’s office, and shall be indexed in the general
index of deeds, and such general index shall show the type of such lien.

§ 43-5. Sufficiency of memorandum and affidavit required by
§ 48-4.—The memorandum and affidavit required by * § 48-4 shall be
sufficient if substantially in form and effect as follows:
Memorandum for Mechanic’s Lien Claimed by General Contractor.

*®NAME Of OWNETS ...rssecesrcccssrscccccececessecsessnssscsscsceeccesesessetcessscesssaesssesesesesseseee
Address Of OWNELS ...rsccccrssssccssssercsscssccsssscsseressssssssssssssssssressssssssesseseseseseess
Name Of ClAtMant: .....cccccccccccccccccccrsssssssssesscscecececenceccsessssssesseeseseeseesenseaess
ae Of ClAUIMANE! viicrccccccsssscceccctcccscessssstecccessescssensececccesseessessccceeessnees
. Type of materials or services fuUrnisneda : .......scsscccccccescccccsccssssresssees
2. AMOUNE ClAIME|M! $.......cccccccccsccceseccssesenens
8. Type of structure on which work done or materials furnished:
4. Brief description and location of real Property: ....cccccccccsessssssssecees
5. noe from which interest on the above amount is claimed
ALES ..rcsccvccsccscccscccscsccecees
sivesnsesssssseececeecceccceccccecssssececscccsenecesseasees (Name of Claimant)
Affidavit
State of Virginia,
County (or City) Of ...........ccccccsssescssssecccesscceees , to-wit:
besecccseeceecccescecesscecescesecesses (notary or other officer) for the county (or
city) ‘aforesaid, do certify that ooo... ce eccsseccesssceceeees * claimant, or
secescceccceccsscceesccessseeceecsassssssscesees , agent for * claimant, this day made oath
before me in my county (or city) aforesaid that ................cccccccsssscsssscsevccsssees
(the owner) is justly indebted to * claimant in the sum Of ...........ccceeeeeeeeeseeee

dollars, for the consideration stated in the foregoing memorandum, and
that the same is payable as therein stated.
Given under my hand this the ......... see GAY Of ou... ceccesecsesssessesees , 19....
(Notary Public or
Justice of Peace, et cetera.)
§ 43-8. Sufficiency of memorandum, affidavit and notice required by
§ 43-7—The memorandum, affidavit and notice required by * § 48-7
shall be sufficient if substantially in form and effect as follows:
Memorandum * for Mechanic’s Lien Claimed by Subcontractor.
NAME Of OWNETS ...rrrcccccccccrsrrnsscsccceccccscceccssccersecccncessccccscoseeccccecceccesscseceess
Address Of OWN rs vircccccccccccccscccssscccccssecccccsscccccscccccscssccccescesscesseseccscescecees
Name of General Contractor (Uf ANY) 2 ccrccccccccecccscescccccsscccccsscesccessseeeees
Name Of Claimant: .u..ccccccccccccssssssssssssccssscescssssscccsssssssessscsssesessssessccsssssessss
ae ee of Claimant: bseeeeccecscccccsssccuseveceeacsseeccsescesenestessecccsecsccscsscescssceseceess
. Type of materials or services furnished: .........scccccccccccccceccscsscccsscees
2. Amount claimed: $........cccccccccssssessscceeees
8. Type of structure on which work done or materials furnished:

SOHSSTHSSHHSSSTHSHSHHHSHHHSHSHCHHEHSESHSERSSEHOEKRESHSHSOHHSHHSSESESHRSSSHESHRHSHEHHSHSHHSSHOHSHHANSHOSHEHHHHSKSSEHE GH TETHESE RSE K se TEEOSSEHESSESESESEOSLEHBEEE

SHOSHSSHSSHSSHSHHSSSETHHSSHSSHSSHSHSEHSSSHEHSSEHHSHHHSSESHOSSHEHHRASHHHSSHFTFCOHSHSHSSSHESCHHHSSSHSSHHSESSSEFTEFCTE SSH eHEetEHEESOeZeHHoeeHORSEeE2EBSE

, Dates cicccccccccccccccssccssccscceccesccssces

State of Virginia,
County (or City) Of co.cc. ceccceeeeeeceesssssscceees , to-wit:

eeusesececssseccseeusessccesssessseeses (notary or other officer) for the county (or
city) aforesaid, do certify that ..........cccccecccccscsscssccccccccssssssscees * claimant, or
bonssecececceeseccccsccsesveesceesencess * agent * for claimant, this day made oath before
me in my county (or city) aforesaid CAL .........ccceccccsssessscccecsssecceeees * is justly
indebted to * claimant in the sum Of ...........ccccccccsscececsecssesesceeee dollars, for
the consideration stated in the foregoing memorandum, and that the same
is payable as therein stated.

Given under my hand this the ............. GAY Of .......cccccccesessceers 19........
beseveeceeccecccescescencssseserecsesss (Notary Public or
Justice of Peace, et cetera.)
Notice.
bo (owner).

You are hereby NOtified that ..........sceeeeeesseeeeeeeeeses (general con-
tractor) is indebted to me in the SuM Of o.............. cccccccscsessseveeees dollars
(G.u....eccssccesecceeees ) with interest thereon from the ............ Gay Of ..............c008
19........ , for work done (or materials furnished, as the case may be,) in
and about the construction (or removal, etc.,) Of & .............cccccccssescesccresceeece

(describe structure, whether dwelling, store, or etc.,) which he has con-
tracted to construct (or remove, etc.,) for you or on property owned by you

in the county (or City) Of .............ccccscsccccssssesceceeereseeees , and that I have duly
recorded a mechanic’s lien for the same.
Given under my hand this the .................... Gay Of ...........:scscceeseees 19......
sescececesceccssceccccensccocececsocsece (Subcontractor).

§ 48-10. Sufficiency of memorandum, affidavit and notice required

by § 43-9..—-The memorandun, affidavit and notice required by * § 48-9
shall be sufficient if substantially in form and effect as follows:

Memorandum * for Mechanic’s Lien Claimed by Sub-subcontractor.

FNAME Of OWNES cicccccccccccccccccsececcccccescccccccccersecccccccccsccccesccsseccessensesseosscecsss

Address Of Owners .u.rrrccccccrscccccsscccccsscsccccssescccccescecsecsceccasesecsescsecccssceencess

Name of General Contractor (if any) and Subcontractor: .............++

Name Of Clatmants .uu.....ccccccsssssccccsssesccsccccesseseeesccsesccecccsssscaccecssescccessssncees

address 0)

. Type of materials or services furnished: ..........ssccccccsccsccssccsscssosccses

SSHSHSHSSSHSSHHOHSSSSSHEHSHSHHHSSHSSHHSTEHSSHSHSHEHSHSSHSSHSHHHSSHSHSHHSHHSSSHSSHHSHSHEHSSHSHSSHSSHSHSSSHSESHSHSHESEOSOSSECESSHFESHEETHEFESHSHOHSSHSKESBESE EASES

SSCHSSHSSHSHSHSHHSHHSHSSHHHSHHHSSHOHSHSSSHSHSHHSSHSHSSHTOESESSHSSHOHTESOCHHSHESSHSSSHSKHESHHESHHHSHSSEHHEHSHSSHSTFHOSCHC HS eSSeSUHSSSeseesHSsenseeenseed

2. AMOUNE claimed: $.u........cccccseseccccccsseccccescecees
8. Type of structure on which work done or materials furnished:

SPSSHSSTHOHSSCSSSHSSSHOHSHSSSSHHSHSHHSEHSHSSSESESHSEHHT A SHSSHHSHSSSSSHSHSHSHHSHHHHSSSHHSH ss SSSSHFHOHSHSSSHSHHSHSHHSHSSHSEHTESHSHEHSHESHOLEHFAHSSESESSSELE

SHHHSHSSSHSHSSSHSHSHHESSSHHSSHESSSHSSHSSEHHSSHSHSSHSEHHOHSHSSHSHSSHSHSHSESSHSSHSSOHTOHSHSSSSEHHOSHSSSHSHSHHSSHOSSKRSSSOSHOHHOSCHSSSESOSCECSESHSSHERSSRLE

4. Brief description and location of real property: ..........sccccccsccscescees
5. nate from which interest on above amount is claimed
1 re
eccccaeseeseeeececesseeeeenssesssasesss (Name of Claimant)
Affidavit
State of Virginia,
County (or City) Of ..........sccccccsssccsssssssessecceeees , to-wit:

I, ccccceccssscccccsseccccssscccssseveeees (notary or other officer) for the county (or
city) aforesaid do certify 0 re * claimant, or
gies eee TEENIE * agent * for claimant, this day made oath before
me in my county (or City) aforesaid that ou... ccccctcccssscecceceeeees * is
justly indebted to * claimant in the sum Of ..............cccccccccssssssceeeees dollars

for the consideration stated in the foregoing memorandum, and that the
same is payable as therein stated.

Given under my hand this the ............. Gay Of .uc...cccccceceseeee 19........
aessseuccccessecenscsscscccenscescescceeeces (*Notary Public or
Justice of Peace, et cetera.)
Notice.
TO ....csscccccccecssseccscccscscnecesceees (OWNEL) ANA .........cccccssccscsscsesssvescensveces (general

contractor) :
You are hereby notified that ................cccsssssscscsssssreeeees , a subcontractor
UNE YOU, SAId .ii.........cseccccessscccceeseccesseccceaeeces (general contractor) for the

construction (or removal, etc.,) Of & ........ccccccccsccssssccssccccsscccsssceceesees (describe
structure) for you, or on property OWNED DY YOU, SAIG .......cccccccrseeee (owner)
is indebted to me in the sum Of .............ccscccsessesesecees dollars (§..........00scccceee
with interest thereon from the ............ day Of .......scccceeee , 19........ , for work
done (or materials furnished) in and about the construction (or removal,
CEC.,) Of SAID ou... cccccseccecsccssccscceccscsessseesees (naming structure), situate in
the county (or City) Of wu... eescccceeesssesereesseens , Virginia, and that I have
duly recorded a mechanic’s lien for the same.

Given under my hand this the ................ Gay Of w...ccccccccccsseeeseees , 19........

sevecccecsseccccccsscecaescseteseseceses ( Sub-subcontractor).

§ 43-11. How owner or general contractor made personally liable
to subcontractor, laborer or materialman.—Any subcontractor or person
furnishing labor or material to the general contractor or subcontractor,
may give notice in writing to the owner or his agent or the general con-
tractor, stating the nature and character of his contract and the probable
amount of his claim, and if such subcontractor, or person furnishing labor
or material shall at any time after the work is done or material furnished
by him and before the expiration of thirty days from the time such build-
ing or structure is completed or the work thereon otherwise terminated
furnish the owner thereof or his agent and also the general contractor, or
the general contractor alone in case he is the only one notified, with a
correct account, verified by affidavit, of his claim against the general con-
tractor or subcontractor, for work done or materials furnished and of the
amount due, the owner, or the general contractor, if he alone was notified.
shall be personally liable to the claimant for the amount due to the sub-
contractor of persons furnishing labor or material by the general contrac-
tor or subcontractor, provided the same does not exceed the sum in which
the owner is indebted to the general contractor at the time the notice
is given or may thereafter become indebted by virtue of his contract
with the general contractor, or in case the general contractor alone is
notified the sum in which he is indebted to the subcontractor at the
time the notice is given or may thereafter become indebted by virtue of
his contract with the general contractor. But the amount which a person
supplying labor or material to a subcontractor can claim shall not exceed
the amount for which such subcontractor could file his claim.

Any bona fide agreement for deductions by the owner because of the
failure or refusal of the general contractor to comply with his contract
shall be binding upon such subcontractor, laborer or materialman.

The provisions of this section are subject to the qualification that
before any such personal liability of the owner or general contractor
herein provided for shall be binding the notice herein required, with such
return thereon as is sufficient under § 8-52, shall be recorded and indexed
as provided in § 43-4.1 in the appropriate clerk’s office; or the notice herein
required shall be mailed by registered or certified mail to and received by
the owner or general contractor upon whom personal liability is sought
to be imposed, and a return receipt therefor showing delivery to the
addressee shall be prima facie evidence of receipt.

§ 43-13. Funds paid to general contractor or subcontractor must be
used to pay persons performing labor or furnishing material.—Any con-
tractor or subcontractor who shall, with intent to defraud, retain or use the
funds, or any part thereof, paid by the owner or his agent, the contractor
or lender to such contractor or by the owner or his agent, the contractor
or lender to a subcontractor under any contract for the construction, re-
moval, repair or improvement of any building or structure permanently
annexed to the freehold, for any other purpose than to pay persons
performing labor upon or furnishing material for such construction, repair,
removal or improvement, shall be guilty of a misdemeanor in appropriating
such funds to his own use while any amount for which he may be liable
or become liable under his contract for such labor or materials remains
unpaid, and may be prosectued upon complaint of any person or persons
* who have not been fully paid any amount due them, and upon con-
viction shall be punished by a fine of not less than * five hundred
nor more than two * thousand dollars, or by confinement in jail not
less than thirty days nor more than * twelve months, or by both such
fine and imprisonment in the discretion of the jury or the court trying
the case without a jury. ;

The use by any such contractor or subcontractor of any moneys paid
to him under the contract, before paying all amounts due or to become due
for labor performed or material furnished for such building or structure,
for any other purpose than paying such amounts, shall be prima facie
evidence of intent to defraud.

In any prosecution under this section the burden of going forward
with the evidence shall be on the defendant to establish that all funds
received by the defendant from the owner or his agent, the contractor or
lender were used to pay persons performing labor upon or furnishing
materials for such construction, repair, removal or improvement.

§ 43-13.1. Use of lien waiver form; forgery or signing without
authority.—Any person who knowingly presents a waiver of lien form to
an owner, his agent, contractor, lender, or title company for the purpose
of obtaining funds or title insurance and who forges or signs wit
authority the name of any person listed thereon shall be guilty of a felony
and punished as provided in § 18.1-96.

§ 43-14.1. Service of Notices—Any notice authorized or required
by this chapter, except the notice required by § 48-11, may be served by any
sheriff, constable or sergeant who shall make return of the time and
manner of service; or any such notice may be served by certified or regts-
tered mail and a return receipt therefor shall be prima facie evidence
of receipt.

§ 43-20. Extent of lien where owner has less than fee in land.—
Subject to the provisions of § 43-3, if the person who shall cause a build-
ing or structure to be erected or repaired owns less than a fee simple
estate in the land, then only his interest therein shall be subject to liens
created under this chapter.

43-21. Priorities between mechanics’ and other liens.—No lien
or encumbrance upon the land created before the work was commenced
or materials furnished shall operate upon the building or structure erected
thereon, or materials furnished for and used in the same, until the lien in
favor of the person doing the work or furnishing the materials shall have
been satisfied; nor shall any lien or encumbrance upon the land created
after the work was commenced or materials furnished operate on the
land, or such building or structure, until the lien in favor of the person
doing the work or furnishing the materials shall have been satisfied.

Unless otherwise provided in the subordination agreement, tf the
holder of the prior recorded lien of a purchase money deed of trust sub-
ordinates to the len of a construction money deed of trust, such sub-
ordination shall be limited to the construction money deed of trust and
said prior lien shall not be subordinate to mechanics’ and materialmen’s
liens to the extent of the value of the land by virtue of such agreement.

In the enforcement of the liens acquired under the previous sections
of this chapter, any lien or encumbrance created on the land before the
work was commenced or materials furnished shall be preferred in the
distribution of the proceeds of sale only to the extent of the value
of the land estimated, exclusive of the buildings or structures, at the time
of sale, and the residue of the proceeds of sale shall be applied to the satis-
faction of the liens provided for in the previous sections of this chapter.
Provided that liens filed for performing labor or furnishing materials
for the repair or improvement of any building or structure shall be subject
to any encumbrance against such land and building or structure of record
prior to the commencement of the improvements or repairs or the furnish-
ing of materials or supplies therefor. Nothing contained in the foregoing
proviso shall apply to liens that may be filed for the construction or re-
moval of any building or structure.

§ 43-23.1. Forfeiture of lien—Any person who shall knowingly in-
clude in his memorandum of lien work not performed upon or materials
not furnished for the property described in his memorandum shall thereby
forfeit any right to a lien under this chapter.

§ 43-23.2. Cumulative remedy—The remedies afforded by this
chapter shall be deemed cumulative in nature and not be construed to. be
in lieu of any other legal or equitable remedies.

2. §§ 48-6, 43-12 and 43-14 are repealed.
8. This act shall be in force on and after July one, nineteen hundred
sixty-eight.