DC lien waiver: the prime contract binds you, except where it waives your lien

What rides downhill, and what does not

The first sentence of 40-303.02(a) is a subordination rule. If you were employed by the original contractor, your lien is subject to the terms and conditions of the contract between the owner and that contractor, whatever those terms are. A liquidated damages regime, a dispute procedure, a scope limit, a schedule of values: all of it can shape what your lien is worth even though your contract is with the general and not the owner.

The rest of the subsection sets the ceiling. The lien of the parties employed by the original contractor is limited to the amount due, or to become due, but unpaid to the original contractor, and is satisfied out of that amount only. And if the general is entitled to recover less than the agreed contract sum because he breached, the liens of the people he employed are enforceable only to the extent of the reduced amount. Your lien is a claim on your general's pot of money, not on the whole building.

Against that, the carve out is a real thing. A term in the prime contract about the original contractor's right to waive liens on behalf of the parties employed does not reach you. So if the owner's form agreement says the contractor waives all liens for himself and all persons working under him, the second half of that sentence does not bind a subcontractor. It is the one place in subchapter I where a contract term is stripped of effect.

The good faith payment defense and the notice that defeats it

Subsection (b) is the owner's best weapon and the most important sentence on this page for anyone working under a general. If the owner has in good faith paid the original contractor in full, and the amount is not in dispute, the parties employed by that contractor have no lien at all. The owner pays once. If your general takes the money and does not pass it on, the building is not your remedy.

The proviso is how you stop that clock. If a subcontractor, materialman or supplier notifies the owner in writing of amounts due, at a time when the owner still owes the original contractor not less than the amount in that notice, then the notice is prima facie evidence that any payment the owner makes to the contractor afterwards was not made in good faith. It costs a letter, it does not have to be recorded, and it converts the owner's later payments into a fight he has to win rather than a defense he simply has.

The same subsection kills the clause people use to prevent that letter. Any provision in a contract, purchase order or similar document that prohibits a subcontractor, materialman or supplier from contacting or communicating with an owner is void to the extent it prevents compliance with the notice requirements of the subsection. So the gag clause in the subcontract does not stop you writing to the owner about what you are owed.

There is also a separate and total defense on home improvement work. Section 47-2883.03 says that where a property owner or occupant has contracted with a person offering to perform or arrange home improvement work and has paid that person for the work, proof of payment is a defense against, and renders void, any lien asserted under subchapter I of chapter 3 of title 40. On a residential improvement job a paid homeowner is the end of the claim.

Ninety days to record, and nine things the notice must contain

DC perfects a lien with a notice of intent recorded in the land records, under 40-301.02. It goes in during construction or within 90 days after the earlier of completion or termination of the project, and if it is not recorded in that window the lien terminates at the end of it. A notice that does not comply with subsection (b) is void, which is why the contents list matters as much as the date.

Subsection (b) wants nine things. The name and address of the contractor claiming the lien. The name and address of the owner. The name of the party against whose interest the lien is claimed, and the amount of the claim less all credits. A description of the work with the dates it started and was completed. A description of the material with the dates of first and last delivery. The legal description of the property plus its street address. A copy of the contractor's current District business license and a certificate of good standing issued within the last 180 days, or the equivalent from the jurisdiction where the contractor is licensed. A copy of the home improvement contract if there is one. And a sworn notarized statement, under penalty of perjury, that the contents are true and that the contractor has a right to recover the amount claimed.

The license and good standing documents are what catch out of town contractors. They are part of the notice, not paperwork you can produce later, and a notice missing them is a notice that does not comply with subsection (b).

Then the service step, which has its own short clock. Within 5 business days of recording, send a copy of the notice to the owner by certified mail. If it comes back unclaimed, refused or undelivered, post a copy on the property so it is visible from a point of entry. Recording without mailing is not a perfected DC lien.

One hundred eighty days to sue, and ten more to record the lis pendens

Section 40-303.13 gives the enforcement window and it is a two part step that people complete only halfway. First, file suit under 40-303.08 to enforce the lien at any time within 180 days after the date the notice of intent was recorded in the land records. Second, within 10 days of filing suit, record a notice of pendency of action in the land records in accordance with 42-1207(b).

Subsection (a)(2) says what happens if either half is missed. Failure to file suit within the 180 day period, or to file the notice of pendency of action on time, terminates the lien. The lis pendens is not a formality. A suit filed on day 170 with no notice of pendency recorded by day 180 leaves you with a lawsuit and no lien.

Note that the 180 days runs from the recording of the notice of intent, not from your last day on the job. Record early in the 90 day window and you have started your own enforcement clock early. That is usually still the right call, because the recording is what gets attention, but it should be a decision rather than an accident.

The lien itself, under 40-301.01, belongs to the contractor who contracted with the owner, in the amount of the contract price or, where there is no express contract, the reasonable value of the project, provided the notice of intent is recorded. Everyone below that contractor takes the subordinated and capped lien that 40-303.02 describes.

What to do about it on a DC job

Do not rely on the carve out to save a release you signed yourself. Section 40-303.02(a) strips the general's authority to waive your lien in the prime contract. It says nothing about your own signature on a waiver form, and the District has no statute voiding an advance waiver. Sign conditional, never unconditional, until the money has cleared, and write the amount and the through date on the form.

If you work under a general, write to the owner the moment an invoice goes past due, and keep the proof. That letter is the thing that turns a later payment to your general into evidence of bad faith under 40-303.02(b), and it is the only answer to the defense that the owner already paid in full. The clause in your subcontract that says you may not contact the owner is void to the extent it stops you sending it.

Build the notice of intent as a package rather than a form. Current District business license, certificate of good standing issued inside 180 days, the home improvement contract if there is one, the work dates, the delivery dates, the legal description, the street address, the amount less credits, and the notarized sworn statement. Record it inside 90 days of the earlier of completion or termination, then certified mail a copy to the owner within 5 business days and post the property if the mail comes back.

Then diary 180 days from the recording for the suit, and 10 days from filing for the notice of pendency. Both, or the lien is gone. And on residential improvement work, remember that a homeowner who has paid the person he hired has a complete statutory defense under 47-2883.03, so on those jobs the letter to the owner needs to go out before he pays, not after.

Which of the four to sign on a District of Columbia job

The carve out says nothing about the release you hand across at a draw meeting. That document is judged as an ordinary contract, so the wording is the whole protection. A conditional waiver ties the release to the payment clearing. An unconditional one gives the lien up on the day you sign, and DC has no statute that reads a payment condition back into it.

Questions people ask

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 D.C. Code section 40-303.02(a) 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.