Delaware lien waiver: void in advance, and on a home the owner can end your lien by paying the general
Delaware gives with one hand and takes with the other, and the second half is the part nobody writes about. Section 2706 voids an advance waiver. Section 2707 says that on an owner occupied home, once the owner has paid the general contractor in full and in good faith, no lien can be obtained at all.
A Delaware contract waiving the right to file or enforce a mechanics lien is void as against public policy. But on a property used solely as the owner's residence, section 2707 bars any lien once the owner has made full or final payment to the general contractor in good faith.
Read the law: Delaware Code title 25 sections 2706 and 2707codes.findlaw.com
25 Del. C. 2706(b), word for wordFill it in online Type your details in and download it already filled in.Any contract, any agreement or understanding whereby the right to file or enforce any lien created under this chapter is waived, shall be void as against public policy and wholly unenforceable.
The same subsection then allows a written waiver executed and delivered simultaneously with or after payment, and allows a written agreement to subordinate, release or satisfy a lien made after a statement of claim has been filed. Both carve outs are about paperwork that follows the money, not paperwork that precedes it.
Download a blank Delaware lien waiver
Delaware prescribes no statutory wording, so this is the general conditional waiver on progress payment, the form that fits most draws. Print it and fill it in by hand, or use the builder below and get it back already filled in.
Free, no signup, no email, no watermark.
Section 2707 is the one that decides most residential jobs
On a property used solely as the owner's residence, no lien can be obtained under the chapter once the owner has made full or final payment, in good faith, to the contractor he hired. That is the whole of it. A subcontractor who was never paid by that general contractor has no lien against the house, because the owner already paid once.
If the owner has not paid in full, a lien is still available but only up to the balance still owed to the general contractor, and that balance is shared pro rata among the claimants who perfect. Payments the owner makes after being served under section 2715 do not count as good faith.
For a subcontractor on a Delaware home this changes the order of operations. Waiting to see whether you get paid is how you lose the lien. The thing that protects you is finding out early whether the owner has paid the general, and giving notice before that final payment goes out.
What section 2707 requires of the general contractor
Before or at the same time as taking full or final payment, the contractor has to give the owner one of two documents. Either a notarized, verified written certification that all labor and materials to that date have been paid for, or a written release of mechanics liens signed by everyone who could otherwise file, with a notarized certification from the contractor that those signatures are all of them.
The consequence of skipping it is not a damages claim, it is a license. The statute says failure to provide the certification or the release is sufficient cause for immediate suspension, revocation or cancellation of the contractor's occupational and business licenses.
So on a Delaware residential job the general contractor collecting final payment needs unconditional final waivers from every sub and supplier in hand, or a notarized certification of his own. That is a closeout checklist item with a license attached to it.
Taking a note does not waive the lien
Section 2706(a) covers the other common trap. Accepting credit, a promissory note or other security does not waive the mechanics lien unless it was taken as payment or unless the lien is expressly waived. The effect is to postpone the lien until the agreed term runs out, not to destroy it.
That means an extension of time on a Delaware job is survivable if the paperwork does not say otherwise. Check that it does not say otherwise.
Which of the four to sign on a Delaware job
The statute protects you from a waiver signed before the work or before the payment. It does not protect you from one worded too broadly, or handed over against a check that later bounces, so the conditional form is still the right default.
Questions people ask
Is an advance lien waiver enforceable in Delaware?
No. 25 Del. C. 2706(b) says any contract, agreement or understanding waiving the right to file or enforce a mechanics lien is void as against public policy and wholly unenforceable. A written waiver executed and delivered at the same time as or after payment is allowed.
The homeowner paid the general contractor but the general never paid me. Can I lien the house in Delaware?
Generally no, if the property is used solely as that owner's residence and the payment was full or final and made in good faith. 25 Del. C. 2707 bars a lien in that situation. If the owner still owes the general a balance, liens are available up to that balance and shared pro rata.
What does a Delaware general contractor have to hand over at final payment?
Under 25 Del. C. 2707, either a notarized verified certification that all labor and materials have been paid for to that date, or a written release of mechanics liens signed by everyone who could otherwise file, with a notarized certification that they are all of them. Failing to do it is sufficient cause to suspend, revoke or cancel the contractor's occupational and business licenses.
Does taking a promissory note waive a Delaware mechanics lien?
No, not unless it was taken as payment or the lien is expressly waived. 25 Del. C. 2706(a) says the effect is to postpone the lien until the agreed time has run, not to give it up.
Working in another state? The general lien waiver forms page covers all four waiver types, and conditional vs unconditional lien waiver explains which of the two to sign and when.
This page quotes Delaware Code title 25 sections 2706 and 2707 and explains what it says. It is not legal advice, and a statute can be amended. Read the linked section before you rely on it.