Can a Virginia water authority put a lien on a rental property for the tenant's unpaid water bill?

Plain-English summary

Dinwiddie County Circuit Court Clerk Chappell asked two related questions. First, can the Dinwiddie County Water Authority (DCWA) record liens on rental real estate when a tenant skips out on water bills, without first suing the tenant or getting a judgment? Second, does the Clerk's office have to verify that a judgment exists or collection efforts were made before recording the lien?

The AG said yes to the first question and no to the second.

DCWA is a water authority created under § 15.2-5102 and governed by the Virginia Water and Waste Authorities Act. The Act describes such an authority as "an instrumentality exercising public and essential governmental functions" with power to fix, charge, and collect rates for services rendered, chargeable to "any person contracting for any such services and/or [] the owners or tenants who own, use or occupy any real estate" served by the system.

Section 15.2-5139 creates the lien mechanism. There is "a lien upon real estate" for any delinquent fees against the owner, lessee, or tenant "from the time when the fees, rents or charges are due." For up to three months of unpaid charges, the authority can record the lien if it has done three things:

1. Advised the owner, at the time of initiating service to the tenant or lessee, that a lien will attach to the real estate if the tenant fails to pay.
2. Mailed the owner a duplicate copy of the final bill at the time the final bill went to the tenant.
3. Used the same collection efforts on tenant accounts as on owner accounts.

The wrinkle is § 15.2-2119 (a separate section in the public utilities portion of Title 15.2). That section requires "service authorities" attempting to collect from tenants to (a) get a judgment against the tenant, (b) make reasonable efforts to collect that judgment, and (c) give the property owner 30 days' written notice before recording a lien. That looks like a contradiction.

The AG resolved the contradiction by reading the statutes structurally. The Virginia Water and Waste Authorities Act constitutes "the full and complete authority, without regard to the provisions of any other law for the doing of the acts [t]herein authorized, and shall be liberally construed." And the public utilities chapter (Title 15.2, Chapter 21) provides that no power granted in that chapter "shall alter or amend the powers or the duties of any present or future authority created pursuant to the Virginia Water and Waste Authorities Act."

Read together, those two clauses mean a Water and Waste authority operates under its own act, free of the general public utilities chapter's procedural overlay. So § 15.2-2119's pre-recording judgment-and-collection requirements do not apply to DCWA. Section 15.2-5139 alone governs.

The corollary for the Clerk: when DCWA brings a lien to the Clerk's office for recording, the Clerk does not need to demand proof of a judgment or proof of collection efforts. The Clerk records the lien as presented; whether DCWA satisfied the § 15.2-5139 prerequisites is a question for DCWA's process, not the Clerk's gatekeeping.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Virginia Water and Waste Authorities Act and related public utilities statutes have been amended over the years. Tenant protections and landlord disclosure requirements in particular have continued to evolve. A current owner facing a lien for a tenant's water bill should look at the current text of §§ 15.2-5139 and 15.2-2119 and any current notice requirements imposed on the authority.

Common questions

Three months of bills, or three months from when bills are due?

Section 15.2-5139 talks about up to three months of unpaid charges. The clock runs on the amount of delinquency, not the calendar from default. The lien covers up to three months' worth.

What if the owner never got the warning at service initiation?

Then one of the three statutory prerequisites is missing, and the lien is not properly recorded under § 15.2-5139. The owner's remedy is to challenge the lien on the ground that the authority did not comply with the statute. The Clerk's role is purely ministerial recording; the substantive validity of the lien is litigated separately if challenged.

Why give water authorities this shortcut compared to other utilities?

Because the Virginia Water and Waste Authorities Act was written to give water authorities streamlined collection tools tied to the utility's "public and essential governmental functions to provide for the public health and welfare." The General Assembly decided that the value of efficient water utility collections (which keeps the system funded and operating) was worth easing the procedural burden.

Does this opinion apply to sewer charges too?

The Virginia Water and Waste Authorities Act covers water and waste services. DCWA is a water authority specifically, but the same framework typically applies to wastewater authorities and joint water-and-sewer authorities under the Act. Any specific authority would need to look at its own enabling resolution and the relevant statutory sections.

Can the owner recover from the tenant who skipped out?

Yes, through normal civil collection mechanisms. The lien on the real estate is just one piece of the picture; the owner retains whatever contractual or statutory rights they have against the tenant directly.

Background and statutory framework

The Water and Waste Authorities Act:

• Virginia Water and Waste Authorities Act. Comprehensive framework for water and waste authorities. The opinion quoted the Act's statement that it is "the full and complete authority, without regard to the provisions of any other law for the doing of the acts [t]herein authorized, and shall be liberally construed," and described authorities as "instrumentalities exercising public and essential governmental functions" empowered to fix, charge, and collect rates from contracting persons, owners, and tenants (the opinion gave no section numbers for these points).
• Va. Code Ann. § 15.2-5102. Creation of water authorities.
• Va. Code Ann. § 15.2-5139. Liens on real estate for delinquent fees from the time they are due. Up to three months of unpaid charges, subject to (i) owner notice at service initiation, (ii) duplicate final bill to owner, (iii) equal collection efforts.

The public utilities chapter (which does not apply to Water and Waste authorities):

• Title 15.2, Chapter 21. The opinion quoted this chapter's clause that "[n]o power . . . granted [in Title 15.2, Chapter 21] shall alter or amend the powers or the duties of any present or future authority created pursuant to the Virginia Water and Waste Authorities Act" (without giving the section number).
• Va. Code Ann. § 15.2-2119. Service authorities must obtain a judgment against the tenant and try to collect before recording a lien against the property owner. 30 days' written notice required to the owner.

The Clerk's role:

• Ministerial recording. The Clerk records what is properly presented. The Clerk is not a substantive gatekeeper for the validity of the underlying lien.

The structural lesson: when two sections of the Code seem to overlap, look for explicit savings or non-derogation clauses. The Virginia Water and Waste Authorities Act and the public utilities chapter both include language insulating the Act from the chapter's procedural overlay.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 15.2-5102
• Va. Code Ann. § 15.2-5139
• Va. Code Ann. § 15.2-2119

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-027-Chappell.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

April 8, 2011

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable John Barrett Chappell, Jr.
Clerk of Court, Dinwiddie County Circuit Court
Post Office Box 63
Dinwiddie, Virginia 23841

Dear Mr. Chappell:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether the Dinwiddie County Water Authority ("DCWA") may record liens on real property for unpaid services used by a tenant without first obtaining a court judgment or attempting to collect the debt from the former tenant to whom services were provided. You also ask whether, prior to recording liens in the judgment book, the clerk's office should require proof that a judgment has been obtained and proof that attempts have been made to collect such debt from the former tenant.

Response

It is my opinion that the DCWA may record its liens prior to obtaining a judgment and without first seeking to collect such debt from any tenant who received services from the authority, provided DCWA follows appropriate statutory requirements. It therefore is my further opinion that the clerk's office has no need to require proof of any such judgment or collection efforts.

Applicable Law and Discussion

The DCWA, as a water authority created pursuant to § 15.2-5102, is governed by the Virginia Water and Waste Authorities Act. As "an instrumentality exercising public and essential governmental functions to provide for the public health and welfare," DCWA is authorized to fix, charge and collect rates, fees and charges for the use of, or for the services furnished by . . . any facilities or systems owned, operated or financed by the authority." Such fees and charges are chargeable to and collectable from "any person contracting for any such services and/or [] the owners or tenants who own, use or occupy any real estate . . . served by . . . such facilities or systems[.]"

Section 15.2-5139 provides that "[t]here shall be a lien upon real estate" for any delinquent fees or charges assessed against the owner, lessee or tenant of the real estate for the use of services on that property "from the time when the fees, rents or charges are due[.]" The statute further provides that a lien "may be placed by an authority" for up to three months of unpaid charges if the authority

(i) has advised the owner of such real estate at the time of initiating service to a lessee or tenant of such real estate that a lien will be placed on the real estate if the lessee or tenant fails to pay any fees, rents or other charges when due for services rendered to the lessee or tenant; (ii) has mailed to the owner of the real estate a duplicate copy of the final bill rendered to the lessee or tenant at the time of rendering the final bill to such lessee or tenant; and (iii) employs the same collection efforts and practices to collect amounts due the authority from a lessee or a tenant as are employed with respect to collection of such amounts due from customers who are owners of the real estate for which service is provided.

In another part of the Code addressing public utilities, § 15.2-2119 requires service authorities attempting to collect unpaid fees and charges for services rendered to "obtain a judgment in a court of competent jurisdiction against the lessee or tenant who contracted for such services for the amount of any delinquencies" prior to recording a lien against the property owner. The lien may be recorded only after the authority has used reasonable efforts to collect the judgment from the tenant and has thereafter given the property owner 30-days written notice of the recordation.

Although DCWA is a service authority, the provisions of § 15.2-2119 do not apply to its enforcement powers. The Virginia Water and Waste Authorities Act "constitute[s] the full and complete authority, without regard to the provisions of any other law for the doing of the acts [t]herein authorized, and shall be liberally construed." Moreover, "[n]o power . . . granted [in Title 15.2, Chapter 21] shall alter or amend the powers or the duties of any present or future authority created pursuant to the Virginia Water and Waste Authorities Act[.]" Therefore, I conclude that the lien created in § 15.2-5139 may be recorded without a requirement that the authority take the additional steps found in § 15.2-2119.

Conclusion

Accordingly, it is my opinion that the DCWA may record its liens without obtaining a judgment and first seeking to collect such debt from a delinquent tenant who received services from the authority, provided DCWA follows appropriate statutory requirements. It therefore is my further opinion that the clerk's office has no need to require proof of any such judgment or collection efforts.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General