Opinion
44775 Record No. 820067
Decided March 8, 1985
Present: All the Justices
Property description in a memorandum of mechanic's lien giving street address and deed book reference is held sufficient under Code Sec. 43-4 and notice by a photocopy of original executed affidavit on file with the Court is held sufficient to impose personal liability upon the property owner under Code Sec. 43-11.
Property — Contracts — Construction — Mechanic's Lien — Affidavits — Statutory Construction — Perfection of Lien by General Contractors and Subcontractors (Code Sections 43-4 and -7) — Property Descriptions — Notice (Code Sec. 43-11).
A subcontractor filed suit against the property owner to enforce a mechanic's lien and to recover damages. Alternatively, the subcontractor sought to impose personal liability on the owner. The subcontractor filed with the clerk of court a memorandum of mechanic's lien which included a statement of account verified by an affidavit and which described the property as the "demised premises and land thereunder . . . located at 1200 South Sterling Boulevard, Sterling, Virginia, and which is more fully described at Book 728, Page 611 of the Land Records of Loudoun County, Virginia." The subcontractor also sent by certified mail a photocopy of the filed memorandum of mechanic's lien, statement of account, and affidavit. The owner filed two demurrers, the first asserting that the memorandum of mechanic's lien failed to provide a sufficient property description, the second asserting that the subcontractor failed to give sufficient notice to impose personal liability upon the owner. The trial court sustained both demurrers. The subcontractor appeals.
1. A building described in a memorandum of mechanic's lien as "a pre-engineered metal building addition" to an existing structure "located at 1200 South Sterling Boulevard, Sterling, Virginia, and which is more fully described at Book 728, Page 611 of the Land Records of Loudoun County" is "reasonably identified" as required by Code Sections 43-4, -7, and -15.
2. Filing with the clerk of court an executed original affidavit verifying the statement of account in a memorandum of mechanic's lien and mailing by certified mail to the property owner a photocopied duplicate of the original satisfies the notice required to render the owner personally liable to a subcontractor under Code Sec. 43-11.
Appeal from a judgment of the Circuit Court of Loudoun County. Hon. Carleton Penn, judge presiding.
Reversed and remanded.
(Francis J. Pelland; Kerry A. Greenwald, on briefs), for appellant.
(David C. Culbert; Nalls, Chamblin Chapman, on brief), for appellee.
Case submitted on briefs.
This appeal involves a dispute between an owner and a subcontractor in a mechanic's lien suit. Two questions are presented: (1) whether the property description in a memorandum of mechanic's lien meets the requirements of Code Sections 43-4 and -7, and (2) whether the subcontractor gave the owner notice as required by Code Sec. 43-11, to impose personal liability upon the owner.
Penrod Stauffer Building Systems, Inc. (Penrod or subcontractor), filed suit to enforce a mechanic's lien against Metro Printing and Mailing Services, Inc. (Metro or owner), and to recover $32,424.95. Penrod alternatively sought to impose personal liability on Metro as provided by Code Sec. 43-11.
Metro filed two demurrers to the bill of complaint. Its first demurrer contested the validity of the mechanic's lien on the ground that Penrod's memorandum failed to provide a property description "sufficient to identify the property sought to be subjected to the lien." The court sustained this demurrer, dismissed the mechanic's lien, and directed that the "cause proceed only with respect to the account alleged."
Thereafter, Metro filed a second demurrer, which asserted that the subcontractor's notice did not comply with the requirements of Code Sec. 43-11, and, therefore, Penrod could not impose personal liability upon Metro. The court also sustained this demurrer and dismissed Metro as a defendant to Penrod's claim. This appeal ensued.
The Industrial Development Authority of Loudoun County leased the subject real property to Metro. Metro contracted with Plandel, Inc., the general contractor, for certain construction work on the land, including furnishing and installing a metal building. Plandel executed a subcontract with Penrod whereby Penrod agreed to supply and erect the metal building for $99,000. Penrod completed the contract and performed extra work for which it claimed $22,424.95, making its total account $121,424.95. Plandel paid Penrod $89,000, but refused to pay the remaining $32,424.95.
The subcontractor filed a memorandum of mechanic's lien describing the property as the "demised premises and land thereunder . . . located at 1200 South Sterling Boulevard, Sterling, Virginia, and which is more fully described at Book 728, Page 611 of the Land Records of Loudoun County, Virginia." The memorandum, which included a statement of account verified by an affidavit, was duly filed with the clerk of court.
Additionally, the subcontractor wrote a letter to the owner, enclosing a copy of the memorandum of mechanic's lien. The memorandum stated the amount, nature, and character of Penrod's claim. Penrod also enclosed a correct account, verified by a photocopy of the original affidavit filed with the clerk. The owner received these documents by certified mail and signed a return receipt therefor.
A memorandum of mechanic's lien must contain "a brief description of the property" on which the lien is claimed. Code Sec. 43-4. See also Code Sec. 43-7. The purpose of the description is to enable an owner, purchaser, or creditor to identify the property on which the lien is claimed. Taylor v. Netherwood, 91 Va. 88, 91, 20 S.E. 888, 889 (1895). If the property can be "reasonably identified," the description is sufficient. Id.; Code Sec. 43-15.
In Taylor, the property was described as:
"[T]hat certain three-story building, No. __, situate and being in the city of Richmond, Va., on Grace street, between Shafer and Harrison streets, and the lot or piece of ground and curtilage appurtenant to the said building, fronting on said south line of Grace street 49 feet, and running back 156 feet, more or less, . . . of which Wirt E. Taylor is the owner or reputed owner.
91 Va. at 91, 20 S.E. at 889. We found the description full and accurate, and held that it sufficiently identified the property. Id. at 92, 20 S.E. at 889.
Here, the building is identified as "a pre-engineered metal building addition" to an existing structure. The property is thereafter described as "the aforementioned demised premises and land thereunder . . . located at 1200 South Sterling Boulevard, Sterling, Virginia, and which is more fully described at Book 728, Page 611 of the Land Records of Loudoun County."
The street address gives the property's location, and a "full and accurate" description is readily obtainable from the referenced deed book. Indeed, the description in the present case is clearer and more exact than that approved in Taylor. We conclude, therefore, that the court erred when it sustained the first demurrer and dismissed the mechanic's lien.
The subcontractor also sought to hold Metro personally liable. Code Sec. 43-11 provides how an owner is made personally liable to a subcontractor:
Any subcontractor . . . may give notice in writing to the owner . . . stating the nature and character of his contract and the probable amount of his claim, and if such subcontractor . . . shall . . . furnish the owner . . . with a correct account, verified by affidavit, of his claim . . . the owner . . . shall be personally liable to the claimant for the amount due to the subcontractor . . . by the general contractor . . ., provided the same does not exceed the sum in which the owner is indebted to the general contractor at the time the notice is given or may thereafter become indebted by virtue of his contract with the general contractor. . . .
The owner concedes that it received a copy of the memorandum of mechanic's lien stating the nature and character of Penrod's contract and the amount of its claim. Metro further acknowledges that it was furnished a statement of the account, verified by a photocopy of the original affidavit executed and filed with the court. The owner contends, nonetheless, that these documents, even when read together, are insufficient to impose personal liability under Sec. 43-1l. We do not agree.
On brief, Metro presents a narrow issue for our consideration: "The limited issue. . . is actually whether. . . a mere copy of an affidavit meets the requirements of Sec. 43-11 which mandates that the account furnished be 'verified by affidavit.' " If we were considering a "mere copy" of an affidavit, perhaps the owner's contention would have merit. Here, however, Penrod furnished a photocopied duplicate of the original. More importantly, because the executed original was filed with the court, it is protected from alteration, damage, destruction, or loss. Further, if the affidavit's authenticity were challenged, the filed original would be readily available for scientific analysis and as a court exhibit.
Since the issue is so limited, we do not address the broader question of the precise notice required by Code Sec. 43-11 to impose personal liability on an owner.
Therefore, we hold that, under these facts, the documents, including the photocopy of the affidavit, fulfilled the notice requirements of Code Sec. 43-11, necessary to impose personal liability upon the owner. Thus, the trial court erred in sustaining the second demurrer.
In sum, the property description was sufficient under Code 43-4 and -7, and the subcontractor met the requirements of Code Sec. 43-11. Accordingly, the decrees appealed from will be reversed and the cause remanded.
Reversed and remanded.