Registered E-Mails Not Ready For Lien Law

Electronic documents are becoming more widely used in business. Technology now allows for the legally binding electronic signatures on various documents. There is even technology available which allows e-mails to be sent and documented in such a way that they serve the same purpose as certified letters. However, such technology would not be suitable with respect to many states’ lien laws.

James Fullerton, Esq., of Fullerton & Knowles, PC in Clifton, VA, said that while such technology is convenient, the lien law in his home state of Virginia requires that notices to owners, or preliminary notices, be sent by certified letter or personal delivery. Notices to owners are notices sent by subcontractors and suppliers describing the products and services delivered to a construction project. Such notices are required in many states in order to preserve lien rights in the event that liens would have to be filed in order to recover payment for products or services delivered to a construction project. In Virginia and other states, the law specifically requires notices to owners to be sent by certified letter, be personally delivered or by a choice of either method.

Fullerton said that unless the law is changed, sending out notices to owners by e-mail, no matter how good the technology is, would not legally protect a business’s lien rights in Virginia and other states that require certified letter delivery. “A lawyer is always going to do it exactly as the statue says,” Fullerton said. “More than half the states require certified mail or personal delivery.” Deborah Lawson, a Government Affairs Consultant in Florida, noted her state’s laws are similar to Virginia’s with respect to the delivery of notices to owners. As to delivery of these notices by e-mail, Lawson said, “We would have to make a statutory change.” Lawson confirmed that in Florida, a preliminary notice must be delivered to an owner of a construction project in order to preserve lien rights.

Both Fullerton and Lawson agree that in the future the laws in their states may be changed to reflect the trend toward the legal acceptance of electronic documents. However, Fullerton believes the slow pace of state law change, at least in Virginia, will mean that it may take several years before the law embraces this new technology to deliver and document legal notices. Fullerton pointed out that while faxes became common in the mid-1980s, it was not until the 1990s that laws were changed to allow faxes to serve as legally binding documents or notices. He also noted that certain types of communications between parties involved in construction projects are sent by e-mail to document that a communication was made, such as an instruction on where to deliver materials to a construction site. “There’s no question that the construction industry is going electronic on the ground.” He also said the even though a statute may require a notice to owner to be sent by certified mail, he recommends that in addition to this method, others are used. Fullerton would recommend sending e-mail in addition to a certified letter. As for when he predicts Virginia’s lien law may be amended to allow for e-mail notices to owners to be sent in lieu of certified mail he said, “It’s going to be 10 years before the statutes change.”

Source: Tom Diana, NACM Staff Writer