On March 2, 2018, the Governor approved an act of the Virginia General Assembly to make unenforceable pre-work waivers of lien rights by general contractors. Thankfully, this new law now extends to general contractors the same protections provided back in 2015 to all lower-tier subcontractors and suppliers. However, some risk still exists for general contractors that does not exist for lower tiers – pre-work waivers of claims by general contractors are still enforceable.
In 2015, the Virginia General Assembly and Governor amended Va. Code § 11-4.1:1 to prohibit waivers by subcontractors and suppliers of claim and lien rights before performing the work. Subs and suppliers can still waive claim and lien rights after performing the work upon which the claim and/or lien is based. The 2015 amendment did not protect General Contractors. (More on the 2015 amendment.)
On March 2, 2018, the Governor approved an amendment to Va. Code § 43-1, which makes unenforceable pre-work waivers of liens by General Contractors. This amendment will become law on July 1, 2018 and apply to contracts dated thereafter.
This amendment applies only to pre-work lien waivers. It does not expressly apply to contract language that seeks to waive or diminish general contractors’ claim rights, such as a no-damage-for-delay clause in a private contract.
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Jonathan J. Straw
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