Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and 

Kinser, JJ., and Whiting, Senior Justice 

YORK FEDERAL SAVINGS & LOAN ASSOCIATION 

 OPINION BY 

v. Record No. 980152 SENIOR JUSTICE HENRY H. WHITING 

 NOVEMBER 6, 1998 

WILLIAM A. HAZEL, INC. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael A. McWeeny, Judge 

In this mechanic's lien enforcement suit, we decide whether 

the holder of a mechanic's lien that is "bonded off" pursuant to 

Code § 43-70 must still establish the priority of the lien. 

 William A. Hazel, Inc. (Hazel) furnished labor and 

materials in performing site development work for a townhouse 

project on real estate in Fairfax County owned by Detty/Anderson 

Hotel Limited Partnership (the owner). The real estate was 

encumbered by a recorded deed of trust securing payment of the 

owner's obligation to York Federal Savings & Loan Association 

(York Federal). 

Subsequent to the owner's failure to pay Hazel, it recorded 

a memorandum of mechanic's lien and filed this suit to enforce 

its lien against the property. Two of the defendants in the 

suit, York Federal and Marilyn C. Cunningham, P.C., (the 

substitute trustee under the deed of trust) petitioned the court 

to release Hazel's lien against the real estate upon their 

posting a bond under the provisions of Code § 43-70 (the 

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"bonding off" statute). Code § 43-70 provides in pertinent 

part: 

In any suit brought [to enforce a mechanic's 

lien], the owner of the building and premises to which 

the lien, or liens, sought to be enforced shall have 

attached, the general contractor for such building or 

other parties in interest may . . . apply to the court 

in which such suit shall be pending . . . for 

permission to . . . file a bond . . . conditioned for 

the payment of such judgment adjudicating the lien or 

liens to be valid and determining the amount for which 

the same would have been enforceable against the real 

estate as may be rendered by the court upon the 

hearing of the case on its merits . . . . 

The parties stipulated: (1) that the owner owed Hazel 

$56,226.25 under its enforceable mechanic's lien; (2) that 

Hazel's Bill of Complaint "satisfied all of the requirements of 

the Virginia mechanic's lien statutes;" (3) that York Federal 

had filed a bond pursuant to the bonding off statute, obtained a 

release of the property from the mechanic's lien claim, and 

later had the substitute trustee sell the property under the 

deed of trust; and (4) that although York Federal "concedes the 

validity and amount of Hazel's memorandum of mechanic's lien, it 

contends that Hazel's recovery is precluded by the priority of 

York'[s]" lien. 

Hazel moved for summary judgment. Hazel contended that 

there was no material issue of fact to be decided since York 

Federal had stipulated as to the "validity, amount and 

enforceability" of Hazel's mechanic's lien, thus removing the 

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issue of York Federal's alleged priority under the provisions of 

Code § 43-21. 

As pertinent, Code § 43-21 provides: 

In the enforcement of [mechanic's] liens . . . 

any lien or encumbrance created on the land before the 

work was commenced or materials furnished shall be 

preferred in the distribution of the proceeds of sale 

only to the extent of the value of the land estimated, 

exclusive of the buildings or structures, at the time 

of sale, and the residue of the proceeds of sale shall 

be applied to the satisfaction of the liens provided 

for in the previous sections of this chapter. Provided 

that liens filed for performing labor or furnishing 

materials for the repair or improvement of any 

building or structure shall be subject to any 

encumbrance against such land and building or 

structure of record prior to the commencement of the 

improvements or repairs or the furnishing of materials 

or supplies therefor. 

York Federal opposed entry of summary judgment on the 

ground that Hazel was still obligated to prove the value of the 

real estate without Hazel's improvements in order for the court 

to apportion the relative priorities of York Federal and Hazel 

to the bond. After considering the stipulations and the 

argument of counsel, the court sustained Hazel's motion for 

summary judgment. York Federal appeals. 

York Federal contends that its stipulation did not resolve 

the issue of the relative priorities of the liens of the 

parties. Hazel responds that the issue has been resolved 

because of the stipulations and the fact that "the bond had 

replaced the real property as security and the trustee had sold 

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the real property." Hazel concludes that "[t]o recover from the 

bond, [Hazel] must only show that his lien is enforceable, not 

that his lien would have been collectable against the real 

property had the property been sold." 

In George W. Kane, Inc. v. NuScope, Inc. 243 Va. 503, 509, 

416 S.E.2d 701, 704 (1992), we said that "with respect to a bond 

enforcement suit, the party-plaintiff has the burden of proving 

the same elements of his claim that he would have had to prove 

in a suit to enforce the [mechanic's] lien released by that 

bond." Hazel contends that the stipulation of the "validity, 

amount, and enforceability of the lien" establishes "the same 

elements of his claim" referred to in Kane. 

However, York Federal did not stipulate that Hazel could 

have collected its claim from the real estate if the bond had 

not been posted but only that Hazel's lien was "enforceable

under the memorandum of mechanic's lien." (Emphasis added.) 

Indeed, the stipulation states that "[w]hile York Federal 

concedes the validity and amount of Hazel's memorandum of 

mechanic's lien, it contends that Hazel's recovery is precluded 

by the priority of York Federal's lien." 

Additionally, payment of the bond posted is expressly 

conditioned on the provisions of Code § 43-70. Further, the 

bonding off order uses substantially the same language found in 

the bonding off statute in conditioning payment of the bond upon 

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the court's adjudication of "the amount for which the liens or 

any one lien would have been enforceable against the real 

estate." Accordingly, we do not think that the stipulation 

removed any burden of proof as to this issue which Hazel may 

have had under Code §§ 43-21 and 43-70. 

Hazel construes the bonding off statute as "simply 

ensur[ing] that amounts enforceable against the bond are 

allowable under the mechanic's lien statute." According to 

Hazel, "[t]he General Assembly could not have intended that the 

language requires proof of priority in this case because no 

competing interests exist once the mechanic's lien was released 

under [the bonding off statute]." However, under Hazel's 

construction, few prior lienors would be willing to bond off the 

real estate if, by doing so, the lienor would be relieved of the 

necessity of proving the priority of his lien. 

Because the language of the bonding off statute is clear 

and unambiguous, it will be applied as written. Robbs v. 

Commonwealth, 252 Va. 433, 436, 478 S.E.2d 699, 700 (1996); 

Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). 

In our opinion, the bonding off statute merely releases the real 

estate from the mechanic's lien claim by requiring that payment 

of the bond be “conditioned for the payment of such judgment 

adjudicating the lien or liens to be valid and determining the 

amount for which the same would have been enforceable against 

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the real estate.” This provision substitutes the bond for the 

real estate. 

Hence, we conclude that the court erred in deciding that no 

issue remained as to the priority Hazel would have had in the 

bonded off real estate and consequently in entering summary 

judgment. Accordingly, the judgment will be reversed and the 

case remanded for further proceedings consistent with this 

opinion. 

Reversed and remanded. 

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