Thomas D. Horne, Chief Judge
MEMORANDUM OPINION
In both of these cases, the Defendants have interposed demurrers and pleas in bar to the plaintiff's claims to enforce mechanics' liens. Plaintiff has attached a copy of the lien sought to be enforced to each of the two complaints. It is alleged that Equity Homes LLC hired plaintiff, a drywall subcontractor, to install and finish drywall in homes built by Equity Homes and purchased by defendants Freeland and Farrow. The "Memorandum of Mechanic's Lien Claimed by Subcontractor under Va. Code Ann. §43-7" attached to the pleading is in the form provided in Va. Code Ann. §43-8. The name of a general contractor is omitted from the space identified as "Name of General Contractor (if any)".
The plea in bar challenges plaintiff's right to enforce the lien in that plaintiff failed to file with the memorandum of lien a certification of mailing of a copy of the memorandum on the owner of the property in accordance with Va. Code Ann. §43-4. By way of demurrer, defendants further allege a failure of the lien claimant to properly verify the memorandum of lien.
Defendants correctly note that "[a] mechanic's lien is a creature of statute and in derogation of the common law, and therefore, mechanic's lien statutes relating to the existence and perfection of the lien are strictly construed." (authorities omitted). Verification of the lien of a general contractor is required by Va. Code Ann. § 43-4. In each of these cases, the affidavit required alleged that the owners are indebted to the plaintiff (claimant) in the amounts stated. Only in the notice included with the Memorandum is it suggested that Equity Homes is the general contractor and with whom plaintiff is in privity. Use of the subcontractors lien form, absent compliance with the recording statutes, is similarly unavailing.
Unlike the certification of mailing of a copy of the memorandum required of a general contractor in perfecting a lien, there is no requirement that the notice to the owner of the amount and character of the claim be filed by a subcontractor to effect perfection by filing. Va. Code Ann. §§ 43-4, 43-7. The Attorney General has concluded that the notice, "…if recorded at all, would be an auxiliary document to a memorandum." 1984-1985 Op. Atty Gen. Va. 37. This is an opinion of the Attorney General that would appear to be accorded a deferential standard when interpreting acts of the General Assembly. Browing-Ferris, Inc. v. Commonwealth, 225 Va. 157 (1983). In any event, the opinion is both logical and consistent with Virginia precedent.
As the notice is not part of the Memorandum, it cannot support or otherwise breathe life into a filing that fails to strictly follow the requirements for perfection.
As a lien of a purported general contractor, the instant pleadings are subject to demurrer and plea in bar. It lacks the certification requirement of Va. Code Ann. §43-4; Britt v. Magazzine Clean, LLC, 271 Va. 58 (2006). Verification of the lien is contradicted by the allegation contained in the complaint.
Accordingly, the demurrers and pleas in bar will be sustained and the respective complaints to enforce the liens dismissed.
Mr. Grasis may draw orders consistent with this opinion to which counsel for the plaintiff may note her exception.
Entered this ___ day of March 2010
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Thomas D. Horne, Chief Judge