Delaware: Mechanic's Lien Waiver Form and Advance-Waiver Rules

Requirements one by one

An advance waiver is void

Delaware draws a bright line. Section 2706(b) says that "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." A "no-lien" clause in a subcontract, a general condition in a
prime contract, or any up-front promise not to lien cannot be enforced against
the person who did the work. This applies "notwithstanding the provisions of any
other law," so parties cannot draft around it.

A waiver is valid only at or after payment

The ban has a narrow, timing-based exception. Section 2706(b) does not prevent
"a written waiver of the right to file a mechanics' lien executed and delivered
by a contractor, subcontractor, material supplier or laborer simultaneously with
or after payment … has been made." So a waiver works only if it is (1) in
writing, (2) signed and delivered by the claimant, and (3) given at the same time
as or after the payment it corresponds to. A waiver signed before that payment is
in the void category. The statute also leaves intact a written agreement to
subordinate, release, or satisfy a lien made after a statement of claim has been
filed — a separate, post-filing step outside this survey.

Credit and security are not automatic waivers

Section 2706(a) protects a claimant who extends time or takes a note. Granting
credit or receiving "notes or other securities" does not waive the lien "unless
the same be received as payment or the lien expressly waived." The only effect of
taking such security is to postpone the lien "until the expiration of the time
agreed upon." A contractor who agrees to be paid later, or accepts a promissory
note, keeps the lien unless the note is taken as payment or the lien is expressly
given up.

There is no statutory form

Delaware prescribes no waiver form. A valid waiver need only satisfy § 2706(b)'s
writing, delivery, and at-or-after-payment requirements. The state does not divide
waivers into conditional and unconditional or progress and final versions, does
not require particular fields, and does not require notarization of the waiver
itself. Because wording is not standardized, a claimant should read the exact
document; a broad waiver can reach change orders or extras if its own language
says so.

What trips people up

The rule protects a claimant from an up-front waiver but not from an unwise one
signed at payment time. Once payment has been made — or is being made — a written
waiver is fully enforceable, and an "unconditional" waiver can surrender lien
rights even if the check is later dishonored. When funds have not actually
cleared, a conditional waiver tied to receipt of payment is the safer document;
that condition is a matter of drafting, because Delaware supplies no default.

Watch the residence rule in § 2707, which is a different thing from a waiver. On
an owner-occupied residence, an owner who has paid the contractor in full in good
faith is protected from liens, and the contractor must give the owner either a
notarized certification that everyone was paid or a release signed by all
lien-entitled persons. That release, signed by the subcontractors and suppliers,
functions like a batch of waivers — but it is part of the owner's full-payment
defense, not a form the statute imposes on a routine payment-stage waiver.

Common questions

Can a subcontract require the sub to waive lien rights before starting work?
No. Section 2706(b) makes any such advance waiver void as against public policy
and wholly unenforceable.

When is a Delaware lien waiver actually enforceable?
Only when it is a written waiver executed and delivered by the claimant
simultaneously with or after the payment it corresponds to (§ 2706(b)).

Does accepting a promissory note give up the lien?
No, unless the note is received as payment or the lien is expressly waived. Under
§ 2706(a) taking security only postpones the lien until the agreed time expires.

Statutes and sources

• 25 Del. C. § 2706 (waiver of lien; advance waivers void, at-or-after-payment
  exception, credit and security) —
  https://delcode.delaware.gov/title25/c027/sc01/index.html (accessed 2026-07-23)
• 25 Del. C. § 2707 (residence full-payment defense; contractor's notarized
  certification or signed release of liens) —
  https://delcode.delaware.gov/title25/c027/sc01/index.html (accessed 2026-07-23)