Is the up-front lien waiver in our Virginia subcontract enforceable?
No, if it was signed before the work. Va. Code § 43-3(C) provides that any right to file or enforce a mechanics' lien "may be waived in whole or in part at any time by any person entitled to such lien, except that a general contractor, subcontractor, lower-tier subcontractor, or material supplier may not waive or diminish his lien rights in a contract in advance of furnishing any labor, services, or materials", and "A provision that waives or diminishes a general contractor's, subcontractor's, lower-tier subcontractor's, or material supplier's lien rights in a contract executed prior to providing any labor, services, or materials is null and void." The companion section does the same for two other rights: a subcontractor as defined in § 43-1, a lower-tier subcontractor or a material supplier "may not waive or diminish his right to assert payment bond claims or his right to assert claims for demonstrated additional costs in a contract in advance of furnishing any labor, services, or materials", and such a provision executed beforehand "is null and void" (§ 11-4.1:1). On a public project, "Any waiver of the right to sue on the payment bond required by this section shall be void unless it is in writing, signed by the person whose right is waived, and executed after such person has performed labor or furnished material in accordance with the contract documents" (§ 2.2-4341(D)). A waiver given AFTER the work still has to clear the older common-law requirements, stated in cases that were themselves about advance waivers, First American Bank having enforced a pre-work Base Agreement waiver that § 43-3(C) would now void: it "must be express, or, if it is implied, it must be established by clear and convincing evidence" (First American Bank, quoting McMerit), and "the general rule is that an agreement to waive or release a mechanic's lien must be supported by consideration to be valid and binding" (United Masonry).
The trap
The prohibition is on advance waiver, not on waiver, so the answer turns on WHEN the paper was signed rather than on how it is worded, and it protects only the four categories the statute names. Two further Virginia traps: § 43-3(A) sets the lien threshold at labour or materials "of the value of $150 or more, including the reasonable rental or use value of equipment"; and § 43-3(D) takes the lien away from a person who performs labour "without a valid license or certificate issued by the Board for Contractors pursuant to Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1, or without the proper class of license for the value of the work to be performed", so an unlicensed or under-classed subcontractor has nothing to waive in the first place. Two more limits from the same sections. Section 43-3(A) gives no lien at all for repairs or improvements to an existing structure "unless such repairs or improvements were ordered or authorized by the owner, or his agent", so a subcontractor on a renovation the owner never authorised has no lien to waive. And on a public project the bond right the waiver rule protects is itself gated: a claimant who contracted with a subcontractor but not with the prime may sue on the bond only after written notice to the contractor within 90 days of its last labour or materials, except for sums withheld as retainages, which the subsection's time limits do not reach, and any action on the bond must be brought within one year of the claimant's last work (§ 2.2-4341(B), (C)): a post-work waiver signed after those windows close is a waiver of nothing. Both Virginia cases on waiver language predate the 2015 prohibition. We hold no opinion citing § 43-3(C) after 2000 and none citing § 11-4.1:1 at all.
12 authorities
- statuteVa. Code § 43-3enactment date not established
The words that state the rule
Any right to file or enforce any mechanics' lien granted hereunder may be waived in whole or in part at any time by any person entitled to such lien, except that a general contractor, subcontractor, lower-tier subcontractor, or material supplier may not waive or diminish his lien rights in a contract in advance of furnishing any labor, services, or materials. A provision that waives or diminishes a general contractor's, subcontractor's, lower-tier subcontractor's, or material supplier's lien rights in a contract executed prior to providing any labor, services, or materials is null and void.
- statuteVa. Code § 43-3enactment date not established
The words that state the rule
A person who performs labor without a valid license or certificate issued by the Board for Contractors pursuant to Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1, or without the proper class of license for the value of the work to be performed, when such a license or certificate is required by law for the labor performed shall not be entitled to a lien pursuant to this section.
- statuteVa. Code § 11-4.1:1enactment date not established
The words that state the rule
A subcontractor as defined in § 43-1 , lower-tier subcontractor, or material supplier may not waive or diminish his right to assert payment bond claims or his right to assert claims for demonstrated additional costs in a contract in advance of furnishing any labor, services, or materials. A provision that waives or diminishes a subcontractor's, lower-tier subcontractor's, or material supplier's right to assert payment bond claims or his right to assert claims for demonstrated additional costs in a contract executed prior to providing any labor, services, or materials is null and void.
- statuteVa. Code § 2.2-4341enactment date not established
The words that state the rule
Any waiver of the right to sue on the payment bond required by this section shall be void unless it is in writing, signed by the person whose right is waived, and executed after such person has performed labor or furnished material in accordance with the contract documents.
- case259 Va. 60First American Bank of Virginia v. J.S.C. Concrete Construction, Inc.Va.decided 2000read it at the source ↗
The words that state the rule
Such a waiver "must be express, or, if it is implied, it must be established by clear and convincing evidence."
- case233 Va. 476United Masonry, Inc. of Virginia v. Riggs National BankVa.decided 1987read it at the source ↗
The words that state the rule
Although a person entitled to a mechanic’s lien may waive that right in whole or part, Code § 43-3(c), the general rule is that an agreement to waive or release a mechanic’s lien must be supported by consideration to be valid and binding. See Walker & LaBerge Co. v. Bank, 206 Va. 683, 688, 692 , 146 S.E.2d 239, 243, 245-46 (1966). See generally, 53 Am. Jur.2d Mech. Liens § 292 (1970 & Supp. 1986); 57 C.J.S. Mech. Liens § 223 (1948 & Supp. 1986). Sufficient consideration exists if the promisee is induced by the waiver to do something that he is not legally bound to do or refrains from doing anything he has a legal right to do, or if the promisee acts in reliance upon the waiver to his detriment.
- statuteVa. Code § 43-3enactment date not established
The words that state the rule
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.
- statuteVa. Code § 2.2-4341enactment date not established
The words that state the rule
B. Any claimant who has a direct contractual relationship with any subcontractor but who has no contractual relationship, express or implied, with the contractor, may bring an action on the contractor's payment bond only if he has given written notice to the contractor within 90 days from the day on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished. Notice to the contractor shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business. Claims for sums withheld as retainages with respect to labor performed or materials furnished, shall not be subject to the time limitations stated in this subsection.
- statuteVa. Code § 2.2-4341enactment date not established
The words that state the rule
C. Any action on a payment bond shall be brought within one year after the day on which the person bringing such action last performed labor or last furnished or supplied materials.
- statuteVa. Code § 43-3enactment date not established
The words that state the rule
All persons performing labor or furnishing materials of the value of $150 or more, including the reasonable rental or use value of equipment, for the construction, removal, repair or improvement of any building or structure permanently annexed to the freehold, and all persons performing any labor or furnishing materials of like value for the construction 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 furnished, subject to the provisions of § 43-20 .
- case259 Va. 60First American Bank of Virginia v. J.S.C. Concrete Construction, Inc.Va.decided 2000read it at the source ↗
The words that state the rule
Consequently, we hold that the trial court erred in refusing to rule that JSC waived its rights to file mechanic's liens.
- case233 Va. 476United Masonry, Inc. of Virginia v. Riggs National BankVa.decided 1987read it at the source ↗
The words that state the rule
The cash payments that United Masonry received, coupled with the inducement to Riggs and Chicago Title to continue construction advances, constituted sufficient consideration for the waivers.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.