Virginia Lien Waiver & Release — The Advance-Waiver Ban in Va. Code section 43-3(C) (2026)
✓ Verified against Virginia statutes · Reviewed August 2026 · By Michael Evan — Founder · 50 states · 799 rules
Virginia mechanics lien deadlines at a glance
Preliminary Notice
None — N/A
Mechanics Lien
90 days — From last date of furnishing
Enforcement
6 months — From filing
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Virginia Draws the Line at Furnishing, Not at Payment
A lien waiver and release is the document a contractor, subcontractor, or supplier signs to give up lien rights, normally in exchange for money. States regulate it along three axes, and identifying which axis a state chose tells you where its arguments happen. Some regulate form: Arizona, Nevada, Texas, and California each prescribe statutory templates on a conditional-versus-unconditional matrix. Some regulate scope: North Carolina caps a progress-payment waiver at the specific payment actually received. And some regulate timing, which is Virginia's axis, with a twist that separates it from every other timing state in the cluster. Va. Code section 43-3(C) reads, in relevant part, that any right to file or enforce any mechanics' lien granted hereunder may be waived in whole or in part at any time by any person entitled to such lien, except that a general contractor, subcontractor, lower-tier subcontractor, or material supplier may not waive or diminish his lien rights in a contract in advance of furnishing any labor, services, or materials, and that a provision that waives or diminishes a general contractor's, subcontractor's, lower-tier subcontractor's, or material supplier's lien rights in a contract executed prior to providing any labor, services, or materials is null and void. Read the two halves against each other. The permission is enormous — waiver in whole or in part, at any time, by any person entitled to a lien. The prohibition is narrow and precise — a waiver in a contract, in advance of furnishing. Virginia's protective line is the moment work or materials start flowing, not the moment money arrives.
The Ban Is Flat, and It Runs the Full Depth of the Chain
Three features of the prohibition do the work. Null and void: the statute does not make an advance waiver voidable, or unenforceable on a showing of unequal bargaining power, or subject to a reasonableness test. The clause is simply not law between the parties. A subcontractor handed a subcontract with a no-lien paragraph in it does not need to negotiate the paragraph out, refuse to sign, or preserve an objection, though negotiating it out is still the cleaner practice, because a void clause left in the document invites a fight nobody needs. General contractor, subcontractor, lower-tier subcontractor, or material supplier: every tier is named. Statutes in other states routinely protect subcontractors and stop, leaving the prime tier to bargain for itself. Virginia's list reaches the top of the chain and the bottom of it in the same sentence — but it did not always. The ban arrived through 2015 c. 748 covering subcontractors, lower-tier subcontractors, and material suppliers, and the 2018 amendments, chapters 79 and 325, added general contractor. On an older prime contract, the date of execution decides which version applies. Waive or diminish: the second verb matters more than it looks. A clause that does not purport to eliminate lien rights but caps them, conditions them on exhausting other remedies, or shortens the statutory windows is a clause that diminishes them. The prohibition reaches the partial version as squarely as the total one, which closes the obvious drafting workaround.
How Section 43-3(C) Applies, Scenario by Scenario
One subsection, plus the subordination provision in section 43-21, produces seven distinct outcomes depending on when the document was signed and what it is called. A no-lien clause in the subcontract signed before mobilization is null and void. A no-lien clause in the prime contract signed before mobilization is also null and void, because general contractor was added to the protected list by the 2018 amendments, chapters 79 and 325 — before 2018 that clause was enforceable. A lower-tier subcontractor or material supplier asked to sign the same clause is protected too, because section 43-3(C) names lower-tier subcontractor and material supplier expressly, so the ban runs the full depth of the chain. A waiver signed after furnishing has begun, in exchange for a progress payment, is enforceable on its own terms, because the statute permits waiver in whole or in part at any time by any person entitled to the lien and carves out only the advance contract provision. A waiver signed mid-job before the payment actually clears is outside the ban and governed by the document, because Virginia draws its line at furnishing rather than payment and writes no receipt-of-payment condition of the New Jersey or Utah kind. A partial waiver limited to one application for payment is enforceable to its stated scope, since nothing requires a Virginia waiver to be all-or-nothing. And a general contractor may agree to subordinate lien rights to a deed of trust before or after furnishing under section 43-21, provided the agreement is in writing and signed.
Subordination Under Section 43-21, the Door Left Open
The same 2018 session that extended the advance-waiver ban to general contractors also wrote an express permission into Va. Code section 43-21: a general contractor may, prior to or after providing any labor, services, or materials, contract to subordinate his lien rights to prior recorded and later recorded deeds of trust, provided that such contract is in writing and signed by any general contractor whose lien rights are subordinated. That is an advance agreement about lien rights, expressly blessed, sitting two sections away from a provision that voids advance agreements about lien rights. The distinction is real and worth stating precisely. A waiver destroys the right. A subordination leaves the right intact — the memorandum still gets recorded, the suit still gets filed, the lien is still valid — and changes only where the claimant stands in line against the deeds of trust. What makes it consequential is the priority rule it displaces. Section 43-21's ordinary rule is that a prior encumbrance on the land is preferred only to the extent of the value of the land estimated exclusive of the buildings or structures at the time of sale, with the remaining proceeds applied to the mechanics liens. That is an unusually claimant-friendly rule: the improvement the claimant built is, in effect, reserved for the people who built it. Subordination trades that reservation away. On a healthy project it costs nothing. On a project that fails with a construction loan larger than the sale proceeds, a subordinated lien can be perfectly valid and recover nothing.
What Makes a Virginia Waiver Enforceable
A Virginia checklist splits into two halves: the one thing the statute supplies, and the several things the claimant has to supply because Virginia prohibits without prescribing. There must be no waiver or diminishment of lien rights in a contract executed before furnishing begins, under section 43-3(C). The waiver document should be dated after furnishing has begun and the date should be provable. Scope has to be stated on the face of the waiver, because no statutory form supplies it. Effectiveness should be conditioned on receipt and clearance of an identified payment, because Virginia writes no bounced-check rule. Retainage, pending change orders, and bond claims should be carved out expressly as a drafting matter. Any subordination to a deed of trust must be in writing and signed under section 43-21. Then come the dates. The memorandum of lien must be recorded within the 90-day windows in section 43-4 — not later than 90 days from the last day of the month in which the claimant last furnished, and in no event later than 90 days from completion. The same section limits the memorandum to sums for labor or materials furnished within 150 days of the last day of furnishing, excepting retainage of up to 10 percent of the contract price and sums not yet due. Suit follows within six months of recording or 60 days from completion or termination, whichever last occurs, under section 43-17. And a subcontractor seeking to make the owner personally liable uses the two-notice mechanism in section 43-11, capped at the sum the owner owes the general contractor when the second notice is given.
Generating and Tracking Virginia Waivers
Because Virginia bans the advance waiver and then prescribes nothing about the ones that follow, the protective work is date discipline and precision about scope. The Mechanics Lien Management document tool records the first-furnishing date on the project record so every waiver generated afterward is provably on the permitted side of the section 43-3(C) line, states the specific payment and carve-outs on the face of the document, and keeps a running total of what has been released so the section 43-4 memorandum reconciles against it. The Mechanics Lien Management State System calendars the two 90-day windows, the 150-day look-back, and the section 43-17 suit deadline from the same record. A claimant who defeats an advance-waiver clause and then misses the memorandum window has preserved a right it can no longer perfect, which is why the two tracks belong on one calendar.
Frequently Asked Questions
Can you waive mechanics lien rights in advance in Virginia?
No, not in a contract signed before you furnish. Va. Code section 43-3(C) provides that a general contractor, subcontractor, lower-tier subcontractor, or material supplier may not waive or diminish his lien rights in a contract in advance of furnishing any labor, services, or materials, and that a provision that waives or diminishes those lien rights in a contract executed prior to providing any labor, services, or materials is null and void. The no-lien clause buried in the subcontract is unenforceable on its face. Nothing has to be litigated about consideration or duress — the provision simply is not law between the parties.
Does Virginia's ban apply to general contractors as well as subcontractors?
Yes, since 2018. The advance-waiver ban was added to section 43-3 by 2015 c. 748 and originally protected subcontractors, lower-tier subcontractors, and material suppliers. The 2018 amendments, chapters 79 and 325, inserted general contractor into the same sentence, so every tier of the payment chain is now covered. That matters because general contractors were the tier most often asked to give up lien rights in the prime contract as a condition of award, and before 2018 those clauses were enforceable against them while identical clauses were void one tier down.
When can a Virginia lien waiver be signed and be enforceable?
Once furnishing has begun. Section 43-3(C) opens by confirming that any right to file or enforce any mechanics lien may be waived in whole or in part at any time by any person entitled to such lien. Only one thing is carved out of that permission — a waiver or diminishment in a contract in advance of furnishing labor, services, or materials. Virginia therefore draws its line at furnishing, not at payment. A waiver signed mid-job for a progress payment that has not yet cleared is outside the ban and is governed by its own terms, which is the opposite of the New York rule under Lien Law section 34.
Can a Virginia general contractor subordinate lien rights to a construction loan?
Yes, and this is the express workaround the legislature left open in the same year it closed the waiver door on general contractors. Va. Code section 43-21 permits a general contractor, prior to or after providing any labor, services, or materials, to contract to subordinate his lien rights to prior recorded and later recorded deeds of trust, provided the contract is in writing and signed by any general contractor whose lien rights are subordinated. Subordination is not waiver — the lien still exists and can still be perfected — but on a project where the deed of trust exceeds the value of the land and improvements, a subordinated lien can be worth very little in a foreclosure sale.
Does Virginia have a statutory lien waiver form?
No. Section 43-3(C) is a prohibition, not a forms statute. Virginia prescribes no conditional-versus-unconditional template of the kind Arizona, Nevada, Texas, and California supply, no mandatory legend, and no statutory language that has to appear on the face of the document. Once the advance-waiver ban is cleared, the waiver means exactly what its own words say. Scope, carve-outs for retainage and pending change orders, and any condition tying effectiveness to receipt of funds all have to be negotiated onto the page, because no statute puts them there.
What happens in Virginia if the check for a signed waiver never clears?
Virginia writes no answer into the statute. There is no bounced-check restoration provision of the kind Utah supplies at section 38-1a-802(3), and no effectiveness switch of the kind New Jersey supplies at N.J.S.A. 2A:44A-38, which makes a waiver effective only upon and to the extent payment is actually received. In Virginia the question is decided by the words of the waiver itself. The protective drafting move is to make the document conditional on its face — effective only upon receipt and clearance of an identified payment, described by amount, invoice, and application number — rather than to sign an unconditional release and argue about failure of consideration later.
What Virginia deadlines sit alongside a lien waiver?
Three, and they are unusual enough to be worth memorizing. Under Va. Code section 43-4 a memorandum of lien must be recorded not later than 90 days from the last day of the month in which the claimant last performs labor or furnishes material, and in no event later than 90 days from completion of the structure, whichever comes first. The same section bars a memorandum from including sums for labor or materials furnished more than 150 days before the last day of furnishing, with retainage of up to 10 percent of the contract price excepted. Under section 43-17 suit to enforce must be brought within six months of recording the memorandum or 60 days from completion or termination, whichever last occurs. Section 43-3(C) protects the right; it does nothing about the calendar.