Virginia lien and bond deadlines: the 90-day clocks every subcontractor should track

Getting paid on a Virginia construction job often comes down to dates. On private projects, unpaid contractors and suppliers protect themselves with a mechanics' lien. On public projects, where liens are not available, they make a claim on the prime contractor's payment bond. Both systems run on 90-day clocks, but the clocks start on different days.

This is a summary of the statutes, not legal advice. Talk to a Virginia construction lawyer about a specific job.

Private jobs: the mechanics' lien

Under Code of Virginia § 43-4, a contractor perfects a lien by recording a memorandum of lien in the clerk's office in the county or city where the building or structure is located. The memorandum may be filed at any time after work begins, but no later than 90 days from the last day of the month in which the claimant last performed labor or furnished materials. In no event may it be filed later than 90 days from the day the structure is completed or the work is otherwise terminated.

The lien does not reach back forever. The statute limits the memorandum to sums for work performed or materials furnished within 150 days before the last day of work, although retainage of up to 10% of the total contract price can be included.

Example: A drywall subcontractor finishes work on March 3. The "last day of the month" rule gives it until 90 days after March 31 to record. But if the building is completed on March 10, the outside limit is 90 days after March 10, which is earlier. The safest course is to count from the earlier date.

Enforcing the lien

Recording the memorandum is only the first step. Code § 43-17 requires a suit to enforce the lien within six months from the date the memorandum was recorded, or within 60 days from the date the building or structure was completed or the work otherwise terminated, whichever is later. A lien that is not enforced in time is lost.

Public jobs: payment bonds

On public projects, the Virginia Public Procurement Act requires prime contractors to post payment bonds. Code § 2.2-4337 sets the thresholds: nontransportation-related construction contracts over $500,000, and transportation-related projects over $350,000 that are partially or wholly funded by the Commonwealth. The bonds must equal the full contract amount.

Claims are governed by § 2.2-4341. A claimant with a direct contract with the prime contractor can sue on the bond after 90 days have passed since its last work. A claimant without a direct contract with the prime, such as a second-tier subcontractor or a supplier to a subcontractor, must first give the prime contractor written notice within 90 days after the day it last performed labor or furnished materials. The notice must state the amount claimed and the name of the party the work was done for.

In either case, the suit on the bond must be filed within one year after the day the claimant last performed labor or furnished materials.

A checklist

• Record your last day of work on every job, in writing, the day it happens.
• On private jobs, calendar both lien dates: 90 days from the end of the month of last work, and 90 days from completion. Use the earlier.
• If you record a lien, calendar the enforcement deadline: six months from recording or 60 days from completion, whichever is later.
• On public jobs, find out whether you have a direct contract with the prime. If not, send the 90-day notice.
• Calendar the one-year deadline to sue on the bond.

Where to read more

This site's lien and bond guide covers the same rules with links to each statute. The full text of each section is on the Virginia Legislative Information System, linked below.