Montana: Mechanic's Lien Waiver Form and Advance-Waiver Rules
The short answer
Montana bans advance lien waivers. A construction contract may not require a contractor, subcontractor, or material supplier to waive the right to a construction lien or a payment-bond claim before it has been paid for the labor or materials furnished (MCA § 28-2-723). Once payment is made, a waiver is an ordinary contract document — Montana prescribes no statutory waiver form.
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This is the general rule in Montana. Ezel applies current Montana law to your specific facts and answers with citations to the statutes.
| Governing law and project scope | Montana Code Annotated Title 71, ch. 3, part 5 (Construction Liens, §§ 71-3-521 to 71-3-563). This part is the exclusive means by which a nonconsensual construction lien arises for a person furnishing services or materials under a 'real estate improvement contract' (§ 71-3-521). The advance-waiver ban is in the contracts title, MCA § 28-2-723. Private real-property work; public-project payment runs through payment bonds. |
|---|---|
| Advance or prospective waiver | Void. 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' that party 'has been paid for the labor, materials, or both … furnished' (MCA § 28-2-723). A pre-payment 'no-lien' or bond-waiver clause forced by the contract is unenforceable; only a waiver given after payment is allowed. |
| Statutory form requirement | None. Neither part 5 nor § 28-2-723 prescribes a waiver form. Part 5 supplies sample forms for the notice of the right to claim a lien (§ 71-3-532) and the lien notice itself (§ 71-3-536), but no conditional/unconditional or progress/final waiver form, warning, or field list. A post-payment waiver's wording is set by contract. |
| Waiver types and payment stage | No statutory conditional/unconditional or progress/final waiver labels and no statutory partial/through-date release. The statutory dividing line is timing, not form: a contract cannot require a waiver 'before' the claimant is paid (§ 28-2-723). Any conditional structure exists only if the parties draft it. |
| Payment and effectiveness | Section 28-2-723 keys enforceability of a required waiver to whether the claimant 'has been paid'; a contract clause demanding a waiver before payment is void. There is no statutory cleared-check, actual-receipt, or evidence-of-payment condition, so any fund-clearance condition on a post-payment waiver must be written into the document. |
| Required contents, exceptions, and through date | None prescribed. Neither § 28-2-723 nor part 5 lists required claimant, owner, amount, or through-date fields for a waiver, or any default carve-out for retainage, extras, change orders, or later work. A post-payment waiver reserves only what its own text reserves. |
| Rights released and reserved | Section 28-2-723 protects two rights from a forced advance waiver: the construction lien under part 5 and 'a right to a claim against a payment bond.' A post-payment waiver reaches whatever of those rights its text releases. Part 5 does not create a separate stop-notice right to release. |
| Signature, authority, notary, and format | Not specified for a waiver. No statute requires a claimant's or agent's signature, an authority statement, notarization, a warning, an electronic-form rule, or attachments for a lien waiver. (The recorded lien notice must be signed and, under § 71-3-537, satisfaction acknowledged — those govern the lien filing, not a waiver.) |
| Noncompliance, remedies, and transition traps | A construction-contract provision requiring an advance (pre-payment) lien or bond waiver is 'void' (MCA § 28-2-723) — it cannot be enforced against the claimant, who keeps the lien and bond rights the clause tried to strip. There is no separate statutory penalty or nonconforming-waiver form rule. No pending bill would change this. |
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Requirements one by one
An advance waiver is void
Montana's construction-lien rules live in Title 71, chapter 3, part 5, but the
rule that matters most for waivers sits in the contracts title. 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 right to a claim against a payment bond before" that party "has been paid for
the labor, materials, or both … furnished." So an owner or general contractor
cannot use the contract to force a "no-lien" promise up front. A clause that
tries to do so is void, and the worker keeps the lien — and the payment-bond
claim — that the clause tried to take away.
Two features are worth noting. First, the ban is not limited to the lien; it also
protects a claim against a payment bond, so a contract cannot force a party to
sign away bond rights in advance either. Second, the line the statute draws is
about timing. It does not forbid waivers; it forbids requiring one before
payment. After the claimant has been paid, a waiver is fully allowed.
There is no statutory waiver form
Montana prescribes no waiver form. The construction-lien part supplies a sample
"notice of the right to claim a lien" (§ 71-3-532) and a sample lien notice
(§ 71-3-536), but nothing for a waiver. There is no statutory conditional-versus-
unconditional wording, no progress-versus-final form, no required warning, and no
field list. A post-payment waiver is an ordinary contract document, and it means
what it says. Because no default statutory rule ties a waiver's effect to a check
actually clearing, a signer who wants that protection must write the condition
into the waiver.
What trips people up
The § 28-2-723 ban targets what the contract can require, not every waiver a
claimant might sign. A subcontractor who voluntarily signs an unconditional
waiver at a progress draw is not protected by the statute the way it would be
against a forced up-front "no-lien" clause. The protection is against advance
waivers extracted through the contract before payment; a waiver given at or after
payment is valid and can permanently release the lien.
Watch the payment-bond half of the rule. Section 28-2-723 voids an advance
waiver of "a right to a claim against a payment bond" just as it voids an advance
lien waiver. A contractor asked to sign broad "waiver of all claims" language
before payment should know that a pre-payment demand to give up bond rights is
also unenforceable under this section.
Common questions
Can a Montana construction contract make me waive lien rights before I'm paid?
No. MCA § 28-2-723 voids any contract provision requiring a contractor,
subcontractor, or material supplier to waive a construction lien or a payment-bond
claim before being paid for the work furnished.
Does Montana have a required lien-waiver form?
No. The construction-lien statutes include sample notice and lien forms but no
waiver form. A post-payment waiver's wording is set by contract.
If I sign a waiver after payment, is it effective even if the check bounces?
There is no statutory rule making a waiver ineffective when payment fails, so a
waiver can release the lien on its own terms. Tie the waiver to actual receipt and
clearance of the payment if you need that protection.
Statutes and sources
- MCA § 28-2-723 (construction contracts requiring a lien or payment-bond waiver
before payment are void) —
https://mca.legmt.gov/bills/mca/title_0280/chapter_0020/part_0070/section_0230/0280-0020-0070-0230.html
(accessed 2026-07-23) - MCA § 71-3-521 (scope; part 5 is the exclusive source of a construction lien on
real estate) —
https://mca.legmt.gov/bills/mca/title_0710/chapter_0030/part_0050/section_0210/0710-0030-0050-0210.html
(accessed 2026-07-23)
Source links
Every statute quoted above, linked, with the date we checked it.
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