How to file a mechanics lien in West Virginia

Step by step

10 steps for a subcontractor in West Virginia.

1. 1

   Step 1: Confirm the property is private before you count on a lien

   Before you bid, and again before you start work.

   West Virginia gives no mechanics lien on a public building or improvement, or on the land under it. If the owner is the state, a county commission, a board of education, a board of trustees, a municipality or another public body, there is nothing to lien. Your remedy is a claim against the contractor's payment bond, which the public body is required to obtain and record before the contract is even binding.

   Where it goes

   The public body that awarded the contract; the bond itself is recorded with the County Clerk in the county where the work is performed.

   How

   Ask whoever is hiring you, in writing, who owns the land. On a public job, ask for a copy of the recorded payment bond. The statute requires that bond to be in a penal sum at least equal to the reasonable cost of the materials, machinery, equipment and labor needed to finish the contract, and to be recorded in the county clerk's office in the county where the work is done and the materials delivered — no such contract is binding until that bond is executed, delivered and recorded.

   Proof to keep

   A copy of the recorded payment bond, and written confirmation of who owns the land.

   If you miss it: You can burn all 100 days preparing a lien that does not exist. A notice recorded against public property gets you nothing, and by the time you find out, your leverage is gone.

   W. Va. Code § 38-2-39(opens the statute in a new tab)
2. 2

   Step 2: Give the owner the optional pre-work notice

   Optional

   Before you do any work or furnish any material or machinery on the job.

   A short written notice to the owner saying that if the person who hired you does not pay you, you will look to the owner for payment. It is not required. Its stated effect is that you do not have to file an account and notice with the owner within sixty days of your last work unless the owner requires you in writing to do so — and the statute says failing to file that account will not affect or impair your lien if the lien is otherwise perfected and preserved.

   Where it goes

   The owner of the building, structure or improvement.

   How

   Written notice to the owner. This section does not prescribe a delivery method, so send it the way you would send the later Notice of Lien and keep the proof.

   Proof to keep

   A copy of the notice and dated proof of delivery.

   What the document must contain

   • Your name, and that you were employed to do work or furnish materials or machinery for the building, structure or improvement
   • Identification of the building, structure or improvement
   • A statement that if the person who employed you does not pay you, you will look to the owner for payment

   If you miss it: Nothing is forfeited. Section 38-2-20 expressly says the failure to file that later account within sixty days, unless the owner required it, shall in no way affect or impair your lien if it is otherwise perfected and preserved.

   W. Va. Code § 38-2-20(opens the statute in a new tab)
3. 3

   Step 3: Search the county records for the owner's recorded contract and bond

   Optional

   Before the job starts if you can, and as soon as payment slows down if you did not.

   The owner can cap what you collect, and you will not see it coming. If the owner recorded the general contract plus a solvent bond in a penalty equal to the contract price, in the county clerk's office before construction began, then the owner's liability and the property's exposure stop at the contract price. If perfected liens exceed that price, the owner pays each claimant pro rata and the balance comes from the contractor and the surety. While you are in the records, also look for a deed of trust recorded before work began: your lien attaches as of the date labor or materials began to be furnished, and it is subordinate to anything recorded or otherwise perfected before that date.

   Where it goes

   County Clerk (Clerk of the County Commission) in the county where the property sits.

   How

   Search the Mechanic's Lien Record (the owner's contract and bond get entered and indexed there too) and the deed of trust books.

   Proof to keep

   Copies of any recorded general contract, bond or earlier deed of trust, with book and page.

   If you miss it: Nothing is forfeited, but you can spend the recording fee and a six-month lawsuit to recover a fraction of your invoice. Worth knowing: if the owner failed to record the contract and bond, or the bond's penalty was less than the contract price, or the bond was not solvent when given, the contractor is deemed the owner's agent and the property is liable for the full and true value of all work and materials, even beyond the contract price.

   W. Va. Code §§ 38-2-22, 38-2-23, 38-2-17(opens the statute in a new tab)
4. 4

   Step 4: Keep a dated itemized account from your first day

   From your first day on the job, kept current.

   You need this twice. Suppliers and laborers who are not in contract with the owner have to put a full itemized account inside the notice they serve on the owner. And separately, the owner can demand an itemized account from you at any time, giving you only ten days to produce it. Build it as you go and you can answer either demand in an afternoon. Do not, and you are reconstructing a year of tickets in ten days.

   Where it goes

   Your own records.

   How

   Any form you will actually maintain, as long as it can show, line by line, the dates the work was done or the materials were furnished, the price charged, and the nature of the work or materials.

   Proof to keep

   Signed delivery tickets and dated daily time records. This matters doubly for suppliers: proof that you sold materials, machinery or equipment to the owner, contractor or subcontractor and delivered them is prima facie proof that they went into the building, and it shifts the burden onto whoever claims they did not.

   What the document must contain

   • The dates on which the work was done or the materials, machinery or equipment were furnished
   • The price charged for each
   • The nature of the work, materials, machinery or equipment

   If you miss it: You cannot complete the notice a supplier or laborer has to serve on the owner, and you cannot answer an owner's ten-day demand. Either failure ends the lien.

   W. Va. Code §§ 38-2-19, 38-2-11, 38-2-13, 38-2-28(opens the statute in a new tab)
5. 5

   Step 5: Answer the owner's written demand for your account within ten days

   Within ten days after you receive the owner's written demand. The clock runs from your receipt of it, and the owner can send it on any day of the job.

   This is the fastest way to lose a lien in West Virginia, and nothing warns you it is coming. The owner may, at any time, send you a written notice requiring you to file an itemized account with the owner. If you do not file it within ten days of receiving that notice, the owner and the property are released from all responsibility and from all lien or charge for everything you did or furnished before the demand — no matter how many days are left on your 100.

   Where it goes

   The owner who sent you the demand.

   How

   File the itemized account with the owner. Send it so you can prove the date it went out and the date it arrived — the same standard of proof you would use for the Notice of Lien.

   Proof to keep

   The demand letter and its envelope showing when it reached you, plus dated proof that you delivered the account inside ten days.

   What the document must contain

   • The dates on which the work was done or the materials, machinery or equipment were furnished
   • The price charged
   • The nature of the work or materials

   If you miss it: The owner is released from all responsibility and the property from all lien or charge for every hour of labor and every item of material you furnished before that demand was given. This can land on day 15 of a 100-day window and end everything.

   W. Va. Code § 38-2-19(opens the statute in a new tab)
6. 6

   Step 6: Serve the owner your sworn Notice of Mechanic's Lien

   Within 100 days after you complete your subcontract. Count from your own last day of work on the job — it is the earlier and safer date — not from the day the whole project is finished.

   This is the first of two separate acts, and it is the one that gets missed. Serving the owner is not the same as recording with the clerk, neither one is a prerequisite to the other, and neither one substitutes for the other. If you record perfectly and never serve, § 38-2-14 discharges your lien completely.

   Where it goes

   The owner, or the owner's authorized agent.

   How

   By any of the methods provided by law for service of a legal notice or summons: personal service, service by an officer authorized to serve process, or certified mail, return receipt requested. Regular first-class mail, email, fax or leaving it at the job trailer does not perfect the lien. The notice has to be signed, sworn to, and notarized — the statutory form ends with your oath that the statements in it are true, and the notary's jurat showing the commission expiration.

   Proof to keep

   The signed return receipt or the officer's return of service, a copy of the exact notice you served, and the date of service. This is what wins the fight over whether the notice leg happened.

   What the document must contain

   • Addressed to the owner
   • Your name as subcontractor, and the name of the general contractor
   • A description of the nature of the subcontract
   • Identification of the building, structure or improvement, owned by the owner
   • Lot number and block number as shown on the official map of the city, or another definite and ascertainable description of the real estate
   • The contract price and value of the work and materials
   • A statement that you have not been paid, or the amount you have been paid
   • A statement that you claim and will claim a lien on the owner's interest in the land and on the buildings, structures and improvements on it
   • Your signature
   • Your sworn oath that the statements in the notice are true
   • The notary's jurat, dated, with the commission expiration and official capacity

   If you miss it: Your lien is completely discharged. Section 38-2-14 treats the failure to give this notice as a complete discharge of the owner and of the property, entirely separately from the recording requirement.

   W. Va. Code § 38-2-9 (consequence of failure: § 38-2-14; architects, surveyors, engineers and landscape architects perfect under the section for the role they occupied: § 38-2-6a)(opens the statute in a new tab)
7. 7

   Step 7: If the owner is out of state or cannot be found, publish and post

   Publishing and posting are sufficient if they are commenced within the same 100 days you have to file. Newspaper publication has its own lead time, so start it weeks before day 100 — do not discover on day 95 that the next run date is day 103.

   You are not stuck if you cannot hand the notice to the owner. If the owner is a nonresident of West Virginia, or if an officer authorized to serve process returns 'not found' on your notice, then publishing the notice and posting it on the property counts as service. The cost of publication can be added to the account you claim, and if you include that cost in the amount stated in the recorded notice, the lien covers it.

   Where it goes

   A qualifying newspaper for the county where the land lies, plus the property itself.

   How

   Publish a copy of the notice as a Class II legal advertisement under chapter 59, article 3, with the publication area being the county where the real estate lies. Also post a copy in a conspicuous place on the property you are seeking to charge.

   Proof to keep

   The publisher's affidavit of publication, a dated photograph of the posted notice on the property, and the officer's return of 'not found' if that is what triggered this route.

   If you miss it: You have no served notice at all, and § 38-2-14 discharges the lien. A claimant who simply cannot locate the owner and therefore does nothing loses the lien — this section exists precisely so that does not have to happen.

   W. Va. Code § 38-2-15(opens the statute in a new tab)
8. 8

   Step 8: Record your Notice of Mechanic's Lien with the County Clerk

   Within 100 days of your own last day of work or last delivery on the job. The statute phrases it as completion of the contract for a general contractor, completion of the subcontract for a subcontractor, the last furnishing for suppliers, and the last work and labor for mechanics and laborers — counting from your own last day on site is the earliest of those and is always safe. It never runs from the day the project as a whole is completed.

   This is the act everyone knows about. Every claimant does it, including a general contractor in direct contract with the owner — for a general contractor, this is the only step. For everyone else it is the second of two acts, and doing it does not excuse serving the owner.

   Where it goes

   County Clerk (Clerk of the County Commission) of the county where the property is situated. Several older sections in this article still say 'clerk of the county court' — that is the same office under its former name. The clerk enters your notice in a book called the Mechanic's Lien Record, indexed by party names, amount and character of the claim, date filed and property description.

   How

   Deliver or mail the notice to the County Clerk for recording. It must be signed, sworn to before a notary and notarized: the statutory form ends with your oath that the statements in the notice of lien are true, and the notary's jurat showing the date and the commission expiration. Recording costs $10 under the county clerk fee statute for a document not otherwise listed, plus $1 for each page past five; if you swear the oath in front of the county clerk rather than another notary, the clerk charges $5 to administer it. Counties that accept electronic recording set their own fee, which cannot exceed the paper filing cost.

   Proof to keep

   A certified or stamped copy showing the book, page and date of filing. Guard that filing date: it is the day your six-month lawsuit clock starts.

   What the document must contain

   • Addressed to the owner
   • A statement that, in accordance with the laws of West Virginia, you claim a lien to secure payment of a stated dollar sum
   • The dollar amount claimed
   • A claim against the owner's interest in the real estate
   • Lot number and block number as shown on the official map of the city, or another adequate and ascertainable description of the real estate to be charged
   • A list of the buildings, structures and improvements you are seeking to charge
   • The date and your signature
   • Your sworn oath that the statements in the notice of lien are true
   • The notary's jurat, dated, with the commission expiration and official capacity
   • Note: if you served an itemized account on the owner, the recorded notice does not have to repeat it. And if your work or materials went into more than one building under the same contract, one notice to the owner and one recording covers all of them — you do not need a separate notice per structure.

   If you miss it: Your lien is completely discharged under § 38-2-14. Serving the owner on time does not save an unrecorded lien.

   W. Va. Code § 38-2-8 (form, and recording by a general contractor); §§ 38-2-9, 38-2-10, 38-2-11, 38-2-12, 38-2-13 (recording by subcontractors, suppliers and laborers); § 38-2-14 (discharge for failure); § 38-2-27 (the clerk's Mechanic's Lien Record); § 38-2-29 (one recording covers several structures); § 59-1-10(a)(6), (a)(7), (b) (fees)(opens the statute in a new tab)
9. 9

   Step 9: File suit in circuit court within six months of recording

   Within six months after the day you filed your notice of lien with the County Clerk. Not six months from your last day of work, and not six months from the day you served the owner — six months from the recording date on your stamped copy.

   Recording preserves the lien. Only a lawsuit enforces it. If no action is commenced within six months after you filed your notice in the clerk's office, the lien is discharged. West Virginia provides no extension for this.

   Where it goes

   The circuit court of the county where the property is located.

   How

   Commence an action to enforce the lien in circuit court. If the owner recorded a general contract and bond, the contractor and the sureties on that bond must be made parties to the suit, and everything arising on that bond is litigated and determined in the same case rather than in a separate action at law.

   Proof to keep

   The file-stamped complaint and the civil action number.

   If you miss it: The lien is discharged. You may still have a contract claim against whoever hired you, but your claim against the property is over.

   W. Va. Code § 38-2-34(a); § 38-2-26 (contractor and sureties joined in the same suit)(opens the statute in a new tab)
10. 10

    Step 10: Release the lien once you are paid

    After the debt secured by the lien is fully paid.

    When the debt secured by the lien is fully paid, clearing the record becomes your job. You either have the clerk enter a discharge in the margin of the book where your claim is entered, or you execute a release that gets recorded in that same book and noted on the margin of your notice.

    Where it goes

    The same County Clerk's office where you recorded the notice.

    How

    Have the County Clerk enter the marginal discharge, or sign and record a release.

    Proof to keep

    A copy showing the entered discharge or the recorded release.

    If you miss it: The party entitled to the release can move the circuit court, on reasonable notice to you, to direct the clerk to enter the discharge — and if you show no good cause, the statute puts the cost of that proceeding on you.

    W. Va. Code §§ 38-2-36(a), 38-2-37(opens the statute in a new tab)

Who can claim a lien in West Virginia

Where you file

Office

County Clerk (Clerk of the County Commission) of the county where the property is situated. For the W. Va. Code 38-2-31 laborer's lien against an incorporated company, 38-2-32 permits filing in the county where the work or labor was performed OR the county where the principal office, works, real estate or personal property of the company is situated.

Recording fee

$10–$25

Notarization

Required

Sworn or verified

Sworn oath before notary

How it is served

Personal service or certified mail

Copies

1

Fees and office procedures change; confirm them with the recording office before you file.

What trips people up in West Virginia

• Recording the lien and never serving the owner. This is the single biggest lien-killer in West Virginia. For a subcontractor, a supplier to a contractor, or a laborer working for a contractor, § 38-2-14 discharges the lien for failure to give the § 38-2-9 / § 38-2-11 / § 38-2-13 notice — even if the recording was timely and flawless. Two separate acts, same 100 days, and neither one is a prerequisite to the other.
• Serving the owner's notice by ordinary mail, email or hand delivery. Sections 38-2-9, 38-2-11 and 38-2-13 all require a method provided by law for service of a legal notice or summons — personal or officer service, or certified mail, return receipt requested. Save the green card.
• Ignoring the owner's ten-day account demand. Under § 38-2-19 the owner may, at any time, send a written demand for an itemized account. Fail to file it within ten days of receiving the demand and the owner and the property are released from all lien for everything you furnished before the demand. It is the shortest clock in West Virginia lien law, it is owner-triggered, and no calendar can predict it. Treat any written letter from the owner as urgent.
• Assuming the 100 days runs from overall project completion. Every trigger in § 38-2-7 is the claimant's own completion or last furnishing. A subcontractor who finished in month three of an eighteen-month job has 100 days from their own last day, not from the day the building opens.
• Treating each invoice, delivery or change order as a fresh clock. Section 38-2-16 deems all materials, work and services by any one person on any one building to be one contract, whether or not bought at one time or contracted for at one time. You get one 100-day window for the whole job. Nothing in the statute restarts it for a later punch-list, corrective or warranty visit.
• Laborers assuming 100 days is their number. If the company you worked for is a corporation or an LLC, § 38-2-32 discharges the broader § 38-2-31 lien at 90 days, not 100. A laborer who files on day 95 keeps the building lien and has already lost the lien on the company's other property plus the one-month wage priority. Work to 90.
• Filing a lien on a public project. Section 38-2-39 bars any lien on a public building or improvement or the land under it. The lien is void and the only remedy is a claim on the contractor's recorded payment bond.
• Treating a residential lien as guaranteed money. Since July 1, 2015, on an existing single-family dwelling, a residence built by the owner or under a contract entered into before the owner occupied it as a primary residence, or a single-family owner-occupied dwelling, the owner has an affirmative or partial defense that the owner is not indebted to the contractor or owes less than the lien amount. A perfect lien can still recover nothing if the homeowner already paid the general contractor. Everywhere else, § 38-2-21(a) makes West Virginia a full-price lien state where owner payment to the contractor does not impair your lien.
• Not checking whether the owner recorded a general contract and bond before construction began. Under § 38-2-22 that caps the owner's exposure at the contract price, and claimants beyond it share pro rata. Your lien may be worth a fraction of its face value and the county records are the only place that shows it.
• Assuming priority over the construction lender. Section 38-2-17 dates your lien from when labor or materials began to be furnished. It beats a deed of trust created after that date and is subordinate to one recorded or perfected before it.
• Giving up because the owner cannot be found. Section 38-2-15 supplies the answer: publish the notice as a Class II legal advertisement in the county where the land lies and post a copy conspicuously on the property, commenced within the same 100 days. Claimants lose liens by doing nothing here.
• Relying on another lienholder's lawsuit. Section 38-2-34(a) says one lienholder's action inures to the benefit of all lienholders on the same property and permits intervention — but it does not say that satisfies your own six months, and no case resolving that was located. File your own action.
• Engineering to the last day because of the weekend rule. W. Va. Code § 2-2-2 pushes an act due on a Saturday, Sunday, legal holiday, weather or other emergency day, or day of local significance to the next non-excluded day, and at least one widely-read commercial source states the opposite. Do not test it. File early.
• Assuming your contractor license does not matter. West Virginia requires a contractor license under § 30-42-6, backed by cease-and-desist orders, administrative penalties and criminal penalties. Article 42 contains no provision barring an unlicensed contractor from enforcing a lien, but nobody should treat license status as a non-issue on this record.
• Assuming a remote lower-tier position carries lien rights. Section 38-2-2 reaches those under contract with the general contractor and those under contract with a subcontractor for a part of the work; § 38-2-4 reaches suppliers to a general contractor or a subcontractor. Positions further down the chain are not addressed and are doubtful. Verify the privity chain before you rely on a lien from a remote tier.

After you file

• Your six-month lawsuit clock starts on the day you filed the notice in the clerk's office — not the day you served the owner, and not your last day of work. Write that recording date on the front of the file.
• The owner can get your recorded lien released without paying you. Under § 38-2-36(b) the owner, or anyone the lien is claimed against, can petition the circuit court to deposit the amount stated in your notice into escrow with the circuit clerk, and the court directs the clerk to release the lien of record. You get advance notice of the hearing by registered mail, return receipt requested, at the address in your notice of lien — which is one more reason that address must be right.
• That escrow does NOT extend your deadline. Under § 38-2-36(b)(4), unless an action to determine the validity of your claim is commenced within six months after you filed your notice of lien, the court orders the money paid back out to the owner. The lien coming off the record changes nothing about your six months.
• On a covered residence, expect the owner's affirmative defense. Since July 1, 2015 the owner of an existing single-family dwelling, a residence built by the owner or under a contract entered into before occupancy as their primary residence, or a single-family owner-occupied dwelling can defend by showing they are not indebted to the contractor, or are indebted for less than your lien. It does not apply to a developer or builder of multiple residences, except for that developer's or builder's own primary residence. This is a limit on recovery, not on filing.
• If the owner recorded a general contract and bond under § 38-2-22, your recovery may be pro rata against the contract price, with the balance coming from the contractor and the surety. If the owner did not record it, or the bond's penalty was under the contract price, or the bond was not solvent when given, § 38-2-23 makes the contractor the owner's agent and exposes the property to the full and true value of the work and materials.
• In the enforcement suit, the contractor and the sureties on any § 38-2-22 bond have to be made parties, and all questions about the bond get decided in that same case.
• If the property is outside a city, town or village, the court decides in its discretion how much of the surrounding land the lien reaches — and no more than is reasonably necessary to the full enjoyment of the building or improvement. There is no fixed acreage.
• Among lien claimants, laborers, artisans, mechanics, workmen and furnishers of material and machinery hold first liens taking precedence over any lien of the contractor or subcontractor who owes them, and a subcontractor's lien takes precedence over the contractor's. All perfected liens within those groups are of equal dignity without priority among themselves.
• When you get paid, you have to clear the record: have the clerk enter a marginal discharge or record a release. If you refuse, the circuit court can order the clerk to do it and charge you the cost of the proceeding.