West Virginia Payment Bond Claim — No Statutory Notice, No Statutory Suit Deadline, the Recorded Bond and Why the Bond Form Sets Your Clock (W. Va. Code § 38-2-39 and § 17-4-20, 2026)
✓ Verified against Virginia statutes · Reviewed November 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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Why a West Virginia Public Job Runs on a Bond
On private work in West Virginia, an unpaid sub or supplier serves notice on the owner and records its lien with the county clerk within 100 days after it stops furnishing, as covered in the West Virginia mechanics lien notice guide . A Kanawha County Schools renovation, a WVU building in Morgantown, a Marshall University project in Huntington or a Division of Highways bridge on Corridor H is different. Section 38-2-39 says plainly that nothing in the lien article gives a lien on a public building or improvement, or on the land under it. The protection is the bond the public body takes from the prime. West Virginia’s Little Miller Act is unusually short. § 38-2-39 sits at the end of the mechanics lien article and requires the bond. § 17-4-20 covers the Division of Highways. § 5-22-1 , the competitive-bidding statute, adds that the low bidder on a bid construction project furnishes a performance and payment bond. None of the three says when a claimant must give notice or when it must sue. That silence is where most West Virginia bond claims go wrong. The Mechanics Lien Management Method treats the recorded bond as the statute: pull it from the county clerk, read its claim conditions, and calendar from them.
The Bond: Penal Sum, Security and Recording
Under § 5-22-1, the State and its subdivisions, including municipalities and county boards of education, must bid every construction project over $50,000 , and the lowest qualified responsible bidder must furnish a sufficient performance and payment bond. Emergency repairs, work by public employees, vocational-student projects and qualifying volunteer projects fall outside that section.
Division of Highways Contracts: Section 17-4-20
On a competitively bid Division of Highways contract, the successful bidder must execute the contract and deliver a surety or collateral bond, payable to the State and approved by the Commissioner, within 20 days after notice of award , in an amount up to 110% of the contract price . That list is broad. Fuel dealers, tire shops and equipment rental houses on a road job are named directly. Like § 38-2-39, the section sets no notice and no suit deadline of its own.
No Statutory Clock: What Actually Governs Your Deadline
With the statutes silent, three sources decide how long you have. The safe practice is to treat the bond form’s notice and suit periods as binding. If the form says 90 days and one year, calendar 90 days and one year. A ten-year statute is a backstop, not a plan.
Every West Virginia Public-Project Rule in One Table
The Mechanics Lien Management State System lets you enter the bond form’s own notice and suit periods against your last-furnishing date. Private-work rules are on the West Virginia lien statutes page, and the calculator is on the West Virginia mechanics lien hub . Work at the FBI CJIS Division in Clarksburg, NIOSH in Morgantown, the Bureau of the Fiscal Service in Parkersburg and the state’s VA medical centers runs under the federal Miller Act. The mechanics lien vs. bond claim page compares the systems. The contrast is sharp: the federal statute gives a second-tier claimant a fixed 90-day notice and a one-year suit bar, while West Virginia’s statutes give neither.
Pull the Bond, Follow Its Terms, Sue the Surety
West Virginia Public Works Workflow Get the recorded bond from the county clerk before you extend credit. Read its notice and suit conditions and calendar them from your last furnishing. Send written notice to the principal and the surety by certified mail even if the form is unclear, and sue both within the bond’s period. Pair it with these resources: Because the deadline depends on the bond form and on case law, connect early with a West Virginia construction attorney through the Mechanics Lien Management network, or request a formal attorney review of the claim file.
In West Virginia, the Bond Form Is the Deadline
The Mechanics Lien Management deadline calculator tracks the bond form’s notice and suit periods on every West Virginia public job. Miss the deadline and you lose your claim rights entirely.
Frequently Asked Questions
Is there a notice deadline for a West Virginia payment bond claim?
Not by statute. W. Va. Code § 38-2-39, which requires the bond on public buildings and structures, and § 17-4-20, which governs Division of Highways contracts, contain no claimant notice to the contractor, the surety or the public owner. The bond form itself often does. Many surety payment bond forms require written notice to the principal and surety within a stated number of days after last furnishing, so get a copy of the bond and read its claim conditions before you assume you have unlimited time.
How long do I have to sue on a West Virginia public works bond?
Neither § 38-2-39 nor § 17-4-20 sets a suit deadline. The bond's own limitation clause, often one year, is the first place to look. Absent an enforceable bond limit, the general limitations statute, W. Va. Code § 55-2-6, applies: ten years on a contract in writing signed by the party to be charged, five on other contracts. Treat the bond form's period as the real deadline, and confirm with counsel how it applies before relying on anything longer.
Which West Virginia public contracts require a payment bond?
Under § 38-2-39, the state, county commissions, boards of education, boards of trustees and every other legal body that contracts to erect, construct, improve, alter or repair a public building or other structure used for public purposes must require a bond from the contractor, in a penal sum at least equal to the reasonable cost of the materials, machinery, equipment and labor required to complete the contract. Separately, § 5-22-1 requires the State and its subdivisions to bid construction projects over $50,000 and requires the lowest qualified responsible bidder to furnish a sufficient performance and payment bond.
Who is protected by a West Virginia public works bond?
Under § 38-2-39, the bond and its sureties answer to every materialman, furnisher of machinery or equipment, and furnisher or performer of labor, or their assigns, for the full value of what was delivered for use on the public building or structure. On Division of Highways contracts, § 17-4-20(b) requires the contractor to pay in full for material, gas, oil, repairs, supplies, tires, equipment, equipment rental and use charges, and labor used in performing the contract, and any person for whose benefit the bond was executed, or its assignee, may sue on it.
How do I find the bond on a West Virginia public project?
Check the county clerk. Section 38-2-39 requires the public body to record the bond, immediately on accepting it, in the office of the clerk of the county commission in each county where the work is done and the materials are delivered, and the contract is not binding on either party until the bond is executed, delivered and recorded. On Division of Highways work, § 17-4-20(e) requires the Commissioner to furnish a duplicate of the contract and bond to the county clerk of the county where the contract is performed.
Can I file a mechanics lien on a West Virginia school or county project?
No. Section 38-2-39 states that nothing in the mechanics lien article gives a lien on a public building or improvement covered by the section, or on the land it sits on. On a state, county, municipal or board of education project, the remedy is the contractor's bond. Federal work, such as at the FBI CJIS Division in Clarksburg or NIOSH in Morgantown, runs under the federal Miller Act.
Can the contractor post cash instead of a surety bond in West Virginia?
Yes. Under § 38-2-39, the surety must be an incorporated bonding or surety company authorized to do business in West Virginia, or, in lieu of corporate surety, the contractor may deposit cash or bonds and securities of the United States or of West Virginia with the public body, in an amount at least equal to the reasonable cost of the materials, machinery, equipment and labor required to complete the contract. On highway work, § 17-4-20 allows a surety or collateral bond of up to 110% of the contract price.