Mechanics' Lien Waiver and Release - Delaware

MECHANICS' LIEN WAIVER AND RELEASE

State of Delaware

PRACTITIONER NOTES AND INSTRUCTIONS

Overview of Delaware Mechanics' Lien Waiver Law

Delaware has a strong public policy against advance waivers of lien rights. Under Del. Code Ann. tit. 25, § 2706, any contract or agreement whereby the right to file or enforce a mechanics' lien is waived shall be void as against public policy and wholly unenforceable, with limited exceptions for waivers executed simultaneously with or after payment.

Key Delaware Lien Law Provisions

Critical: Advance Waiver Prohibition (§ 2706)

Delaware law is explicit: "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 only exceptions are:

1. A written waiver executed and delivered simultaneously with or after payment for labor or materials supplied; and
2. A written agreement to subordinate, release, or satisfy all or part of a lien after a statement of claim has been filed.

Contractor's Final Payment Certification for an Owner-Used Residence (§ 2707)

For property used solely as the owner's residence, prior to or simultaneously with receipt of full or final payment, the contractor must provide the owner either:

• A notarized, verified written certification that the contractor has paid in full for all labor and materials; or
• A written release of mechanics' liens signed by all persons entitled to a lien, containing a notarized, verified certification.

When to Use Each Waiver Form

1. Conditional Waiver on Progress Payment — Execute and deliver only simultaneously with or after payment has been made; its condition protects against a failed or reversed payment.
2. Unconditional Waiver on Progress Payment — Use after a progress payment has been received and cleared.
3. Conditional Waiver on Final Payment — Execute and deliver only simultaneously with or after final payment has been made; its condition protects against a failed or reversed payment.
4. Unconditional Waiver on Final Payment — Use after final payment received and cleared. For an owner-used residence, confirm that the separate § 2707 contractor certification or all-claimant release has also been provided where required.

Important Warnings

WARNING: Under Delaware law (§ 2706), any lien waiver executed BEFORE payment is made is void and unenforceable. Do not execute or deliver a waiver based only on a promised or tendered future payment. The written waiver must be executed and delivered simultaneously with or after payment has been made.

WARNING: For an owner-used residence, § 2707 requires the contractor to provide the specified notarized certification of payment or an all-claimant release with contractor certification before or with full or final payment. An individual claimant's waiver alone is not the all-claimant release.

WARNING: Section 2713 addresses a single claim against multiple structures, not a preliminary notice. Calculate any statement-of-claim deadline under § 2711 for the claimant's actual role and timing event.

FORM 1: CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT

(Delaware — Effective Only Upon Clearance of Payment)

NOTICE: This document waives and releases mechanics' lien rights only to the extent and through the date stated below, and only if the payment already made is received and clears. Under Del. Code Ann. tit. 25, § 2706, execute and deliver it simultaneously with or after payment has been made. A promise or tender of future payment alone is insufficient.

Project Information:

Claimant Information:

Payment Information:

CONDITIONAL WAIVER AND RELEASE

Upon receipt and clearance of payment in the amount of $[________________________________] from [________________________________] (Payor), the undersigned Claimant hereby conditionally waives and releases any and all mechanics' lien rights arising under Delaware Code Annotated Title 25, Chapter 27, for labor, services, equipment, or materials furnished to the above-described Property through the Through Date stated above, to the extent of the amount stated.

This waiver and release is conditioned upon actual receipt of payment and clearance of the above-referenced check or instrument of payment. If payment is not received, or if the check or instrument fails to clear for any reason, this waiver and release shall be null and void, and the undersigned shall retain all lien rights as though this document had not been executed.

Compliance with § 2706. The undersigned certifies that the payment referenced above has been made and this waiver is executed and delivered simultaneously with or after that payment, in compliance with Del. Code Ann. tit. 25, § 2706.

Exceptions. This waiver and release does NOT cover and the undersigned expressly reserves lien rights for:

☐ Retainage in the amount of $ [________________________________]
☐ Pending change orders, specifically: [________________________________]
☐ Disputed claims in the amount of $ [________________________________]
☐ Labor, services, equipment, or materials furnished after the Through Date
☐ Other: [________________________________]

Claimant Certification. The undersigned certifies that all debts owed to subcontractors, laborers, and material suppliers for work covered by this waiver through the Through Date have been paid or will be timely paid from the progress payment referenced herein.

Signature:

Claimant Signature: ______________________________

Printed Name: [________________________________]

Title: [________________________________]

Company: [________________________________]

Date Signed: [__/__/____]

FORM 2: UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT

(Delaware — Irrevocable Upon Execution)

NOTICE: This document waives and releases lien rights unconditionally and irrevocably to the extent and through the date stated below. This document is effective immediately upon execution. The undersigned should NOT execute this document unless payment has actually been received and the check has cleared. Under Del. Code Ann. tit. 25, § 2706, this waiver executed before payment would be void.

Project Information:

Claimant Information:

Payment Information:

UNCONDITIONAL WAIVER AND RELEASE

The undersigned Claimant hereby unconditionally and irrevocably waives and releases any and all mechanics' lien rights arising under Delaware Code Annotated Title 25, Chapter 27, for labor, services, equipment, or materials furnished to the above-described Property through the Through Date stated above, to the extent of the amount of $[________________________________] received.

This waiver and release is unconditional and effective immediately upon execution. It is binding regardless of any subsequent dispute or claim by the undersigned.

Compliance with § 2706. The undersigned certifies that payment in the amount stated has been received and that this waiver is executed after receipt of payment, in compliance with Del. Code Ann. tit. 25, § 2706.

Exceptions. This waiver and release does NOT cover:

☐ Retainage in the amount of $ [________________________________]
☐ Pending change orders, specifically: [________________________________]
☐ Labor, services, equipment, or materials furnished after the Through Date
☐ Other: [________________________________]

Claimant Certification. The undersigned certifies that payment has been received in full, that the check has cleared, and that all debts owed to subcontractors, laborers, and material suppliers for work covered by this waiver have been paid or will be timely paid.

Signature:

Claimant Signature: ______________________________

Printed Name: [________________________________]

Title: [________________________________]

Company: [________________________________]

Date Signed: [__/__/____]

FORM 3: CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT

(Delaware — Effective Only Upon Clearance of Final Payment)

NOTICE: This document waives and releases mechanics' lien rights on the project only if the final payment already made is received and clears. If payment fails or is reversed, this document has no effect. Execute and deliver this waiver simultaneously with or after payment has been made, as § 2706(b) requires.

Project Information:

Claimant Information:

Payment and Contract Information:

CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT

Upon receipt and clearance of the final payment already made in the amount of $[________________________________] from [________________________________] (Payor), the undersigned Claimant hereby conditionally waives and releases any and all mechanics' lien rights arising under Delaware Code Annotated Title 25, Chapter 27, for all qualifying labor, services, equipment, or materials furnished to the above-described Property in connection with the Project.

This waiver is conditioned upon actual receipt and clearance of the final payment. If the final payment is not received or the check fails to clear, this waiver shall be null and void.

This waiver covers ALL work, labor, services, equipment, and materials from commencement through completion, including retainage, change orders, and extras, with the following exceptions:

☐ No exceptions — full and final release
☐ Disputed amounts totaling $ [________________________________], described as: [________________________________]

Payment to Others. The undersigned will apply the final payment to unpaid Project obligations owed to subcontractors, laborers, and material suppliers, if any. For an owner-used residence, the contractor must separately satisfy § 2707's certification or all-claimant release requirements.

Signature:

Claimant Signature: ______________________________

Printed Name: [________________________________]

Title: [________________________________]

Company: [________________________________]

Date Signed: [__/__/____]

FORM 4: UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT

(Delaware — Irrevocable Full and Final Release)

NOTICE: This document constitutes a full, final, unconditional, and irrevocable waiver and release of all mechanics' lien rights on the project. The undersigned should NOT execute this document unless the final payment has been received in full and the check has cleared. Once signed, this waiver cannot be revoked. An individual claimant's waiver does not itself satisfy the separate contractor certification or all-claimant release requirement for an owner-used residence under § 2707.

Project Information:

Claimant Information:

Payment and Contract Information:

UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT

The undersigned Claimant hereby unconditionally and irrevocably waives and releases any and all mechanics' lien rights arising under Delaware Code Annotated Title 25, Chapter 27, for all qualifying labor, services, equipment, or materials furnished to the above-described Property in connection with the Project.

This waiver is unconditional and irrevocable. It covers ALL work from commencement through final completion, including retainage, change orders, extras, and all other amounts.

The undersigned acknowledges and represents that:

(a) The total contract price, as adjusted, was $[________________________________];

(b) The undersigned has received total payments of $[________________________________], constituting payment in full;

(c) No further amounts are due or owing in connection with the Project;

(d) All subcontractors, sub-subcontractors, laborers, and material suppliers have been paid in full or will be paid from the final payment; and

(e) The undersigned has no outstanding claims, disputes, or demands against the Property Owner, Hiring Party, or Property.

Owner-Used Residence Certification (if applicable). If the Property is used solely as the owner's residence and the undersigned is the contractor receiving full or final payment, the contractor must provide the owner the notarized, verified certification or all-claimant release described in § 2707. Attach that separate document if applicable: ☐ attached ☐ not applicable.

Signature:

Claimant Signature: ______________________________

Printed Name: [________________________________]

Title: [________________________________]

Company: [________________________________]

Date Signed: [__/__/____]

NOTARIZATION

Note: Section 2707 requires notarized verification for the specified contractor certification or all-claimant release on an owner-used residence. This notarization block does not replace that separate, complete certification or release.

State of Delaware
County of [________________________________]

Before me, the undersigned Notary Public, on this [____] day of [________________________________], 20[____], personally appeared [________________________________], known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that the statements therein are true and correct.

WITNESS my hand and official seal.

Notary Public Signature: ______________________________

Printed Name: [________________________________]

My Commission Expires: [__/__/____]

[NOTARIAL SEAL]

CERTIFICATE OF DELIVERY

I hereby certify that a true and correct copy of the foregoing Mechanics' Lien Waiver and Release was delivered to:

Delivered by: ______________________________

Date: [__/__/____]

SOURCES AND REFERENCES

• Delaware Code Annotated Title 25, Chapter 27 (Mechanics' Liens)
• Del. Code Ann. tit. 25, § 2706 (Waiver of Lien — Advance Waiver Prohibition)
• Del. Code Ann. tit. 25, § 2707 (Owner-Used Residence Payment and Certification) — https://delcode.delaware.gov/title25/c027/sc01/index.html
• Delaware Superior Court Prothonotary — statement-of-claim filing office under § 2712(a)
• Delaware Secretary of State — Notary Public Division