PRESENT: All the Justices
BRITT CONSTRUCTION, INC.
v. Record No. 051004 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 13, 2006
MAGAZZINE CLEAN, LLC, ET AL.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
In this appeal, we consider whether Code § 43-4 requires
that a general contractor, as a condition of perfecting a
mechanic’s lien, contemporaneously file with the memorandum of
lien a “certification” that a copy of the memorandum has been
mailed to the property owner.
In February 2003, Magazzine Clean, L.L.C. (Magazzine Clean)
hired Britt Construction, Inc. (Britt) as the general contractor
for construction of a commercial car wash facility on Magazzine
Clean’s property in Loudoun County. As a result of disputes
between the parties during the construction process, Britt
recorded 12 separate memoranda of mechanic’s liens against
Magazzine Clean’s property.1
Britt recorded the memoranda of liens in Loudoun County
between June 18, 2004 and October 14, 2004. However, Britt did
not mail copies of these memoranda of liens to Magazzine Clean,
nor did Britt file certifications of such mailings at the time
1
Britt did not perform any further work on the project
after August 31, 2004.
of filing its memoranda. Instead, Britt waited until December
17, 2004 to record certifications of mailing for each of the 12
memoranda previously filed.
Magazzine Clean initiated this suit by filing a petition to
invalidate the mechanic’s liens pursuant to Code § 43-17.1.2
Magazzine Clean argued that none of the mechanic’s liens met the
perfection requirements contained in Code § 43-4 because Britt
did not mail copies of the memoranda of mechanic’s liens to
Magazzine Clean, nor did Britt file certifications of mailing
along with the memoranda. As amended by the General Assembly in
2003, Code § 43-4 states in relevant part that:
A general contractor . . . in order to perfect the
lien given by § 43-3 . . . shall file a memorandum of
lien at any time after the work is commenced or
material furnished, but not later than 90 days from
the last day of the month in which he last performs
labor or furnishes material, and in no event later
than 90 days from the time such building . . . is
completed, or the work thereon otherwise
terminated. . . . A lien claimant who is a general
contractor also shall file along with the memorandum
of lien, a certification of mailing of a copy of the
2
Code § 43-17.1 provides that: “Any party, having an
interest in real property against which a lien has been filed,
may, upon a showing of good cause, petition the court of equity
having jurisdiction wherein the building . . . is located to
hold a hearing to determine the validity of any perfected lien
on the property. After reasonable notice to the lien claimant
and any party to whom the benefit of the lien would inure and
who has given notice as provided in § 43-18 of the Code of
Virginia, the court shall hold a hearing and determine the
validity of the lien. If the court finds that the lien is
invalid, it shall forthwith order that the memorandum or notice
of lien be removed from record.”
2
memorandum of lien on the owner of the property at the
owner's last known address. . . .3
(Emphasis added.)
After considering the parties’ briefs and arguments, the
circuit court granted Magazzine Clean’s amended petition and
invalidated the liens. The circuit court held that the
mechanic’s liens were invalid because Britt did not file
certifications of mailing along with the memoranda of liens.
Britt appealed from the circuit court’s decree.
Britt argues that the provision in Code § 43-4 directing a
general contractor to file a certification of mailing is not a
requirement for perfection of the general contractor’s
mechanic’s lien. Britt asserts that the statute’s only
requirement for perfection of such a lien is the timely filing
of the memorandum of lien, and that the certification of mailing
need only be filed in order for a property owner to be deemed to
have notice of the lien. Thus, Britt maintains that the
statutory directive for filing a certification of mailing is
merely a notice provision that should be construed liberally.
In support of its argument, Britt notes that two other
statutes, which address liens of subcontractors and persons
performing labor or furnishing materials for a subcontractor,
expressly require as a condition of perfecting a lien that
3
The General Assembly amended Code § 43-4 to include the
certification of mailing requirement effective July 1, 2003.
3
written notice of the lien be given to the owner.4 See Code
§§ 43-7 and -9. Britt contends that because Code § 43-4 does
not contain similar express language, the General Assembly did
not intend to impose such a requirement in this statute. We
disagree with Britt’s arguments.
We consider the language of Code § 43-4 under basic rules
of statutory construction. We examine the statute in its
entirety and determine the General Assembly’s intent from the
plain and natural meaning of the words used in the statute.
West Lewinsville Heights Citizens Ass’n v. Board of Supervisors,
270 Va. 259, 265, 618 S.E.2d 311, 314 (2005); Capelle v. Orange
County, 269 Va. 60, 65, 607 S.E.2d 103, 105 (2005); Vaughn, Inc.
v. Beck, 262 Va. 673, 677, 554 S.E.2d 88, 90 (2001).
When statutory language is unambiguous, we are bound by the
plain meaning of that language. Williams v. Commonwealth, 265
Va. 268, 271, 576 S.E.2d 468, 470 (2003); Woods v. Mendez, 265
Va. 68, 74-75, 574 S.E.2d 263, 266 (2003); Earley v. Landsidle,
257 Va. 365, 370, 514 S.E.2d 153, 155 (1999). Therefore, when
the General Assembly has used words of a definite import, we
cannot give those words a construction that amounts to holding
that the General Assembly meant something other than that which
4
Code §§ 43-7 and -9 provide, in relevant part, that “in
order to perfect the lien . . . [the contractor] shall comply
with [the provisions of] § 43-4, and in addition [thereto] give
notice in writing to the owner of the property . . . .”
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it actually expressed. Alliance to Save the Mattaponi v.
Commonwealth, 270 Va. 423, 439, 621 S.E.2d 78, 87 (2005);
Williams, 265 Va. at 271, 576 S.E.2d at 470; Vaughn, 262 Va. at
677, 554 S.E. at 90.
We further observe that when a statute has been amended,
there is a presumption that the General Assembly intended to
effect a substantive change in the law. West Lewinsville
Heights Citizens Ass’n, 270 Va. at 265, 618 S.E.2d at 314;
Virginia-American Water Co. v. Prince William County Serv.
Auth., 246 Va. 509, 517, 436 S.E.2d 618, 622-23 (1993). Thus,
we will assume that a statutory amendment is purposeful, rather
than unnecessary. West Lewinsville Heights Citizens Ass’n, 270
Va. at 265, 618 S.E.2d at 314; AAA Disposal Servs. v. Eckert,
267 Va. 442, 446, 593 S.E.2d 260, 263 (2004); Virginia-American
Water Co., 246 Va. at 517, 436 S.E.2d at 623.
Because the mechanic’s lien statutes are in derogation of
the common law, the statutory requirements regarding the
existence and the perfection of a mechanic’s lien must be
strictly construed. Carolina Builders Corp. v. Cenit Equity
Co., 257 Va. 405, 410, 512 S.E.2d 550, 552 (1999); American
Standard Homes Corp. v. Reinecke, 245 Va. 113, 119, 425 S.E.2d
515, 518 (1993); Rosser v. Cole, 237 Va. 572, 576, 379 S.E.2d
323, 325 (1989). A mechanic’s lien must be perfected within the
specific time frame and in the manner set forth in the statutes,
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or the lien will be lost. Carolina Builders Corp., 257 Va. at
411, 512 S.E.2d at 552; American Standard Homes Corp., 245 Va.
at 119, 425 S.E.2d at 518; Wallace v. Brumback, 177 Va. 36, 40,
12 S.E.2d 801, 802 (1941).
Applying these principles, we conclude that the
certification of mailing requirement of Code § 43-4 is plain and
unambiguous. The statute expressly requires that a general
contractor “file along with” the memorandum of lien a
certification that the general contractor has mailed a copy of
the memorandum of lien to the owner at the owner’s last known
address.
By using the word “file,” the General Assembly made its
intention clear that the certification of mailing is not merely
a notice provision. Moreover, in requiring that the
certification be filed “along with” the memorandum of lien, the
statutory language directs that the memorandum of lien cannot be
filed alone without the certification of mailing, and that both
documents must be filed in order to perfect the lien.5
5
The absence of any reference to a certification of mailing
in the “safe harbor” form of Code § 43-5 does not affect our
analysis of Code § 43-4. That form addresses only the
sufficiency of a memorandum of lien and affidavit filed under
Code § 43-4. Also, the “safe harbor” forms of Code §§ 43-8 and
–10 are not relevant to the issue before us because they pertain
to subcontractors and to persons furnishing labor or materials
to a subcontractor and, thus, do not affect the unambiguous
requirements imposed on a general contractor by Code § 43-4.
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Britt’s contrary argument is unavailing because it would
permit a general contractor to mail a copy of its memorandum of
lien and to file its certification of mailing at a time of the
general contractor’s own choosing. This result would render the
plain language of the statutory amendment meaningless and would
undermine the clear intent of the amendment to prevent a general
contractor from filing undisclosed liens against an owner’s
property.
Because the certification provision of Code § 43-4 imposes
an additional requirement for perfecting a mechanic’s lien, we
are not permitted to construe the requirement liberally.
Instead, we impose a strict construction standard in accordance
with our established precedent. See Carolina Builders Corp.,
257 Va. at 410, 512 S.E.2d at 552; American Standard Homes
Corp., 245 Va. at 119, 425 S.E.2d at 518. Here, Britt did not
file the required certifications of mailing along with its
memoranda of liens but waited more than two months after filing
the final memorandum of lien to record the certifications.
Thus, Britt’s actions clearly demonstrate its failure to comply
with the certification requirement of Code § 43-4.
Our conclusion regarding the plain meaning of Code § 43-4
is not altered by Britt’s observation that this statute, unlike
Code §§ 43-7 and -9, does not expressly state that written
notice to the owner is a condition of perfecting a mechanic’s
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lien. When statutory language is plain and unambiguous, we will
not look to other provisions of the Code to interpret that
statute. Carolina Builders Corp., 257 Va. at 409, 512 S.E.2d at
552. Thus, the fact that the General Assembly chose to use
different language in stating a perfection requirement in those
other statutes cannot alter the plain language of Code § 43-4,
which requires that a general contractor “file” its
certification of mailing “along with” its memorandum of lien.
For these reasons, we will affirm the circuit court’s
judgment.
Affirmed.
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