Montana lien waiver: the rule bans the clause, and it is not in the lien chapter
Montana's rule is easy to miss because it is filed nowhere near the construction liens. It is not in title 71, it is in the contracts title, in the part headed Illegal Objects and Provisions, and it is addressed to what a construction contract may not contain.
A Montana construction contract may not contain a provision requiring a contractor, subcontractor or material supplier to waive the right to a construction lien or to a payment bond claim before that person has been paid for the labor or materials furnished.
Read the law: MCA 28-2-723mca.legmt.gov
MCA 28-2-723, word for wordFill it in online Type your details in and download it already filled in.A construction contract may not contain provisions requiring a contractor, subcontractor, or material supplier to waive the right to a construction lien or a right to a claim against a payment bond before the contractor, subcontractor, or material supplier has been paid for the labor, materials, or both labor and materials, furnished by the contractor, subcontractor, or material supplier.
Two details worth having. The section is aimed at what a contract may not contain, so the target is the clause in the subcontract rather than the waiver form you sign at a draw. And it names the payment bond claim in the same breath as the lien, which matters on public work where there is no lien to file against the property at all.
Download a blank Montana lien waiver
Montana 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.
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Where the rule is not, and why that matters
Montana's construction liens are at MCA title 71 chapter 3 part 5. That part contains no waiver section. Two other sections look like the answer and are not. MCA 71-3-109, headed Certain contracts void, deals with forfeiture of property subject to a lien and with restraints on the right of redemption. MCA 28-2-2116, headed Construction contracts, void provisions, voids out of state forum clauses and clauses barring suspension of work for non payment.
The real section is MCA 28-2-723, in title 28 chapter 2 part 7, Illegal Objects and Provisions. It was enacted in 1999 and it has stayed in the contracts title ever since.
That is not trivia. If you or your attorney search only the lien chapter, Montana looks like a state with no rule, and it is not. Six states verified on this site put the anti waiver rule outside the lien chapter.
The payment bond half of the sentence
Most anti waiver statutes protect the mechanics lien and stop there. Montana protects the right to a claim against a payment bond in the same sentence.
That is the half that matters on public work. There is no mechanics lien against a public building, so on a state or municipal job the payment bond is the only security a subcontractor has. A clause that requires you to give it up before payment is void under the same section.
What the statute leaves to you
The form. Montana prescribes no statutory waiver wording, so the document handed over at each draw means exactly what it says and no more.
And the waiver you sign after you have furnished the work. The statute is directed at a contract provision requiring a waiver before payment. A waiver you sign at a draw, for work already done, is an ordinary release. Use the conditional version until the funds have cleared.
Which of the four to sign on a Montana job
The statute here voids the contract clause that demands an unpaid waiver, but it does not void the waiver itself once you have signed one. That gap is what the form has to cover. A conditional waiver ties the release to the payment clearing. An unconditional one releases on signature, and no statute is going to unwind it for you.
Questions people ask
Can a Montana subcontract require a lien waiver before payment?
No. MCA 28-2-723 says a construction contract may not contain provisions requiring a contractor, subcontractor or material supplier to waive the right to a construction lien or a payment bond claim before being paid for the labor or materials furnished.
Where is Montana's lien waiver law?
In the contracts title, not the lien chapter. It is MCA 28-2-723, in title 28 chapter 2 part 7, Illegal Objects and Provisions. Montana's construction liens themselves are at MCA title 71 chapter 3 part 5, which contains no waiver section.
Does the Montana rule cover payment bond claims?
Yes. MCA 28-2-723 names the right to a claim against a payment bond alongside the construction lien. That is what protects a subcontractor on public work, where there is no lien against the property to file.
Does Montana have a statutory lien waiver form?
No. Montana prescribes no waiver wording. The statute voids the contract clause and leaves the form to the parties, so a conditional waiver with the amount and through date filled in is the safer document to hand over.
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 MCA 28-2-723 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.