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RGMacEsq
RGMacEsq, Attorney
Category: Business Law
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Experience:  Licensed Texas General Practice Attorney
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as a software contractor can you file a mechanics lien on

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as a software contractor can you file a mechanic's lien on the hardware and software used to develop a system for which you have not been paid?

RGMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

RGMacEsq :

Most likely not. Virginia's mechanic's lien laws apply only to the labor and materials used to benefit physical structures (i.e. construction) for work done that is "permanently annexed to the freehold". See VA law § 43-3. Lien for work done and materials furnished: "A. All persons performing labor or furnishing materials of the value of $150 or more, including the reasonable rental or use value of equipment, for the construction, removal, repair or improvement of any building or structure permanently annexed to the freehold..."

RGMacEsq :

Basically a mechanics lien is against real property that is benefited by that lien. Say, for instance, you contract for an arbor to be built onto your house. If you don't pay, the contractor can file a lien against your house because the house is benefited by that arbor. But if a contractor brings over a movable grill (that is not affixed to the property) that would be personal property, not permanently annexed to the freehold (property), and so the lien would not attach to that grill as well. It would only attach to the real property.

RGMacEsq :

In the same sense, software is portable. The real property is not permanently benefited by that software, and the software is not permanently annexed to the freehold. As such, a mechanics lien cannot be used to secure payment.

RGMacEsq :

You can still file a suit under breach of contract principles, but you won't be able to have a secured interest (i.e. lien) in the real estate where this was implemented. A mechanics lien only applies to freehold property (i.e. land).

RGMacEsq :

I know this is probably not what you wanted to hear, but it's the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you do click "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, XXXXX XXXXX good luck to you!

RGMacEsq :

That being said, you need to contact an attorney in your area that deals with breach of contract cases. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

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