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 (§ 2726)

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 — Use when a progress payment check has been tendered but not yet cleared. Must be executed simultaneously with or after payment per § 2706.
2. Unconditional Waiver on Progress Payment — Use after a progress payment has been received and cleared.
3. Conditional Waiver on Final Payment — Use when final payment has been tendered but not yet cleared.
4. Unconditional Waiver on Final Payment — Use after final payment received and cleared. Serves as the written release required by § 2726.

Important Warnings

WARNING: Under Delaware law (§ 2706), any lien waiver executed BEFORE payment is made is void and unenforceable. Do NOT execute any waiver form before payment has been tendered. Advance or prospective lien waivers are prohibited.

WARNING: Under § 2726, the contractor must provide a notarized certification of payment or a signed release from all lien claimants before receiving final payment. The Unconditional Final Waiver form below includes this certification language.

WARNING: Delaware requires subcontractors and suppliers to serve preliminary notice on the owner within 60 days of first furnishing labor or materials (§ 2713). Failure to give notice may bar lien rights.

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 upon the condition that payment is actually received and the check clears. Under Del. Code Ann. tit. 25, § 2706, this waiver is valid only because it is executed simultaneously with or after tender of payment. Any waiver executed before payment is void under Delaware law.

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 this waiver is being executed simultaneously with or after tender of the payment referenced above, 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 ALL lien rights on the project, conditioned upon actual receipt and clearance of the final payment. If payment is not received or does not clear, this document shall have no effect. This form may serve as part of the contractor certification required by Del. Code Ann. tit. 25, § 2726.

Project Information:

Claimant Information:

Payment and Contract Information:

CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT

Upon receipt and clearance of final payment in the amount of $[________________________________] from [________________________________] (Payor), the undersigned Claimant hereby conditionally waives and releases any and all mechanics' lien rights, bond rights, and any other lien rights arising under Delaware Code Annotated Title 25, Chapter 27, for all 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: [________________________________]

Contractor Certification Under § 2726. The undersigned certifies that upon receipt and clearance of the final payment, all subcontractors, sub-subcontractors, laborers, and material suppliers for work on the Project will be paid in full. This certification is made in compliance with Del. Code Ann. tit. 25, § 2726.

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 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. This form serves as the contractor's certification and release required by Del. Code Ann. tit. 25, § 2726.

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, bond rights, and any other lien rights arising under Delaware Code Annotated Title 25, Chapter 27, for all 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.

Contractor Certification Under § 2726. The undersigned hereby provides the notarized, verified written certification required by Del. Code Ann. tit. 25, § 2726 that the undersigned has paid in full for all labor and materials furnished in connection with the Project, or that all persons entitled to a mechanics' lien have been paid and have released their lien rights.

Signature:

Claimant Signature: ______________________________

Printed Name: [________________________________]

Title: [________________________________]

Company: [________________________________]

Date Signed: [__/__/____]

NOTARIZATION

Note: While Delaware does not require notarization for general lien waivers, notarization IS required for the contractor's certification under § 2726 (final payment). Notarization is recommended for all waiver forms.

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, § 2726 (Contractor's Certification of Payment)
• Delaware Recorder of Deeds — Lien filing requirements
• Delaware Secretary of State — Notary Public Division