West Virginia mechanics’ lien and bond deadlines
Work on Private Property
West Virginia lien deadline
Based on the general 100-day period from last furnishing. Exceptions apply — treat this as a planning estimate, not legal advice.
Filing deadline
All claimants record a statutory-form Notice of Mechanic's Lien with the Clerk of the County Commission where the property lies within 100 days of the trigger: contract completion (contractors), subcontract completion (subs), last delivery (materialmen), or last labor (laborers/mechanics). Statutory forms per claimant class should be tracked closely even though substantial compliance is the standard.
Notice prerequisites
No notice is required before work starts. If you did not contract with the owner, you may give the owner an optional written notice before you start (W. Va. Code § 38-2-20) saying you will look to the owner for payment if you are not paid. This notice does not replace the later steps: you must still record your notice of mechanic's lien and serve it on the owner within 100 days (§§ 38-2-9, 38-2-11). If the owner sends you a written demand for an itemized account, you must provide it within 10 days (§ 38-2-19).
Service on the owner
Claimants not in privity with the owner must ALSO serve the notice on the owner or its authorized agent within the same 100-day window, using the method for serving legal process/summons; failure to serve the owner timely is fatal to the lien. Owner-privity claimants only record.
Enforcement
Suit to enforce must be filed within 6 months of recording the notice; another lienholder's timely suit on the same property inures to all lienors, who may intervene. The court orders sale of only so much of the property as needed and may enter personal judgment against parties in privity.
W.Va. Code 38-2-1 through 38-2-37 (esp. 38-2-7 filing/service, 38-2-17/18 priority, 38-2-20 optional notice, 38-2-34 suit).
W. Va. Code ch. 38, art. 2 — Mechanics’ Liens — published by the West Virginia Legislature.
Work on Public Property
No mechanics lien attaches to public property in any state. On a government job the remedy is the prime contractor’s payment bond, and it runs on its own act with its own deadlines — not the lien deadlines above.
- Who — Nobody — West Virginia prescribes no notice.
- When — There is no notice clock.
- How — Not applicable.
- If late — Not applicable. The risk here is a different kind — see below.
- Sue by — Article 2 prescribes NO limitation period for suit on the § 38-2-39 bond. Read below.
Is there a bond at all?
Sec. 38-2-39 states NO dollar threshold. The duty runs to 'every person to whom it shall award, and with whom it shall enter into, any contract for the erection, construction, improvement, alteration or repair of any such public building or other structure used or to be used for public purposes,' and the bond must be 'in a penal sum equal at least to the reasonable cost of the materials, machinery, equipment and labor required for the completion of such contract.' Note that the measure is the reasonable cost of labor and materials, NOT the contract price -- so on a contract with a large fee or equipment component the penal sum may lawfully be less than the contract sum. Sec. 5-22-1 adds a competitive-bidding threshold of construction projects 'exceeding $50,000 in total cost' and provides at subsection (e) that the contract is awarded to the lowest qualified responsible bidder who furnishes 'a sufficient performance and payment bond.' Sec. 38-2-39 also permits a cash or securities deposit in lieu of a corporate surety: 'in lieu of such corporate surety the contractor may deposit as security for such bond ... a sum in cash or bonds and securities of the United States of America or of the State of West Virginia of sufficient amount and value equal at least to the reasonable cost of materials, machinery, equipment and labor required for the completion of such contract.'
Who can claim on it
Sec. 38-2-39: the bond is 'conditioned that in the event such contractor shall fail to pay in full for all such materials, machinery, equipment and labor delivered to him for use in the erection, construction, improvement, alteration or repair of such public building or other structure ... then such bond and the sureties thereon shall be responsible to such materialman, furnisher of machinery or equipment, and furnisher or performer of such labor, or their assigns, for the full payment of the full value thereof.' There is NO tier language whatever -- no reference to subcontractors, to privity, or to a cut-off. But read the condition carefully: it is keyed to materials, machinery, equipment and labor 'delivered to HIM,' i.e. to the contractor, which on its face describes the first tier. Whether a second- or third-tier claimant is within the bond is not answered by the statute's text and depends on case law and on the bond's own wording. Assigns are expressly included.
What notice you owe
NOBODY, so far as the statute goes. Sec. 38-2-39 prescribes no notice of any kind -- not to the public body, not to the contractor, not to the surety, and not as a condition of suit. There is no privity distinction because there is no notice regime at all. The bond's own terms may impose one; the statute does not.
How it must be served
None prescribed. The statute is silent.
What it has to say
No contents prescribed.
If the notice is late, or never given
Not applicable -- there is no statutory notice to miss. The corresponding risk is different in kind and is described under "The trap".
When the suit clock starts
No bond-specific accrual rule exists. Accrual is ordinary contract accrual against the surety on its written undertaking.
How long you have to sue
Chapter 38, article 2 prescribes NO limitation period for a suit on the Sec. 38-2-39 bond -- the article ends at Sec. 38-2-39, so there is no companion limitation or notice section. The general statute applies. W. Va. Code Sec. 55-2-6, verbatim in relevant part: 'Every action to recover money, which is founded upon an award, or on any contract other than a judgment or recognizance, shall be brought within the following number of years next after the right to bring the same shall have accrued, that is to say: If the case be upon an indemnifying bond taken under any statute, or upon a bond of an executor, administrator or guardian, curator, committee, sheriff or deputy sheriff, clerk or deputy clerk, or any other fiduciary or public officer, within ten years; if it be upon any other contract in writing under seal, within ten years; if it be upon an award, or upon a contract in writing, signed by the party to be charged thereby, or by his agent, but not under seal, within ten years; and if it be upon any other contract, express or implied, within five years ...' A surety bond executed under a statute and in writing falls within the ten-year branches on the face of that text. Which branch a court would apply is not settled by the statute.
Where suit is brought
Not prescribed. Sec. 38-2-39 says nothing about court or venue.
The trap
West Virginia's danger is the opposite of the usual one: there is no short notice or bond deadline to blow, so claims are lost instead because no bond exists or none can be found -- Sec. 38-2-39 makes recordation a condition of the contract itself ('no such contract shall be binding and effective upon either party or parties thereto until such bond has been executed, delivered and recorded as aforesaid'), and the claimant's first move should be to pull the recorded bond from the county clerk's office where the work is done rather than to calendar a deadline.
The act itself
No popular name, and not really a Little Miller Act in the modern sense. West Virginia's public-work payment security sits in two unrelated places: W. Va. Code Sec. 38-2-39, which is the last section of the MECHANICS LIEN article and substitutes a bond for the lien that public property cannot bear; and W. Va. Code Sec. 5-22-1, the West Virginia Fairness in Competitive Bidding Act, which conditions award on a payment bond. Neither prescribes a claim notice or a bond-specific limitation period.
Where this comes from
W. Va. Code Sec. 38-2-39 ('Public building; bond of contractor; recordation of bond; no lien in such case'). W. Va. Code Sec. 5-22-1(d), (e), (l) (bid bond; performance and payment bond as condition of award; anti-steering). General limitation of actions: W. Va. Code Sec. 55-2-6.
W. Va. Code ch. 38, art. 2 — Mechanics’ Liens — published by the West Virginia Legislature.
Statutory summary as of 29 July 2026. Not legal advice; confirm with a lawyer licensed in West Virginia.