Delaware State Lien Law Summary

Furnisher of labor or mat­erial over $25 to owner, contractor or sub. Includes those providing construction management services. Statutory language and case law imply that suppliers to suppliers are not covered. Per case law, suppliers of rental equipment are not covered, but those providing laborers (for example, manpower agencies) are covered, regardless of whether the labor is manual or supervisory. NOTE that where claimant contracts with tenant, in order to have a lien against the real property itself, claimant must have prior written consent to the contract signed by the landlord.  [2702, 2722; Schor at §9.03[B]; Gould v. Dynalectric, 435 A.2d 730 (1981) Griffin Dewatering Corp. v. B.W. Knox Constr. Corp., Not reported in A.2d, 2001 WL 541476 (Del. Super. Ct.,2001); Construction Resource Management v. Littleton, Not Reported in A.2d, 2008 WL 4117186 (Del.Super., 2008); King Const., Inc. v. Plaza Four Realty, LLC, 976 A.2d 145 (Del.Supr.2009)]

Note: Non-resident contractors must file a surety bond before any work can commence on a contract. [Schor at §9.02[D]]

Note: If improvements are only to land, must have a written, signed contract stating names of all parties to the con­tract, description of property in metes & bounds, the general character of the work to be done, the total amount due, the amounts of partial pay­ments, and the time such payments are due and pay­able. [2703]

PAYMENT BOND:

Note that where there is a payment bond providing coverage to those contracting with the general and the sub, then a claimant contracting with a sub-subcontractor will not be covered. [Berlin Steel Const. Co. v. Salah & Pecci Leasing Co., Inc., 5 A.3d 608 (Del.Supr.,2010.)]

Suppliers of labor or mater­ials to project; however, per Schor, unless the surety agreement contains language specifically including suppliers to and laborers of a sub, such claimants cannot bring a claim against the bond. There may be other issues regarding which parties are covered or excluded, thus it is strongly recommended that you get a copy of the bond. [6927, 6962; Schor at §9.02[A] and [C]]

Note that non-resident contractors are required to file a surety bond before any work can commence on a contract. [Schor at §9.01]

Structure and ground upon which it is situated. [2702]

NOTE that where claimant contracts with tenant, in order to have a lien against the real property itself, claimant must have prior written consent to the contract signed by the landlord. [2722; King Const., Inc. v. Plaza Four Realty, LLC, 976 A.2d 145 (Del.Supr.2009)]

Contractor’s performance bond. [6927]

A preliminary notice is not required.

A preliminary notice is not required.

All claimants – but note that if owner demands contractor or sub provide list of all persons supplying labor or materials, and contractor or sub fails to provide list within 10 days of de­mand, said general or sub cannot file a lien. There is, however, some flexibility in this rule, as the court will allow a claimant to file a lien where the list is provided by the claimant within the time for filing a lien claim, even if it is more than ten days after the demand. [2705; Rockland Builders, Inc. v. Endowment Management, LLC, Not Reported in A.2d, 2006 WL 2053418 (Del.Super.)]

Strongly recommend obtaining a copy of the bond itself to determine if any notices are required, and following any requirements set out in the bond.

Prothonotary of Superior Court. [2711]

We strongly recommend obtaining a copy of the bond itself to determine if any notices are required, and following any requirements set out in the bond.

GENERAL CONTRACTOR:

Filed after completion or acceptance of the structure, but within 180 days after completion or acceptance of the structure. Note that there are several ways of determining completion, so there can be some flexibility in filing; nonetheless, it is recommended that you not wait until the last minute to file the statement of claim. [2711] Note, however, that where claimant is contracting with a tenant rather than the property owner, the contractor is treated as a subcontractor, and must follow the deadlines set out for “all other claimants”, below. [King Const., Inc. v. Plaza Four Realty, LLC, 976 A.2d 145 (Del.Supr.2009)]

ALL OTHER CLAIMANTS:

W­ithin 120 days after claimant’s last delivery of materials or last furnishing of labor. Notice is timely as long as it is filed within 120 days after (1) the date final payment, including retainage, is due to the claimant, or (2) the date final payment is made to the general contractor with whom the claimant has a contract. Again, note that there are several ways for determining the date of the last delivery, and may include the dates of final payment.  Note also that notice may not be given until AFTER claimant’s last furnishing of labor or materials.   [2711; King Const., Inc. v. Plaza Four Realty, LLC, 976 A.2d 145 (Del.Supr.2009)]

Strongly recommend obtaining a copy of the bond itself to determine if any notices are required, and following any requirements set out in the bond.

Filed with prothonotary. [2712]

We strongly recommend obtaining a copy of the bond itself to determine if any notices are required, and following any requirements set out in the bond.

NOTE: THE LIEN CLAIM MUST BE SIGNED BY THE CLAIMANT, NOT THE ATTORNEY.

Titled a complaint and/or statement of claim, shall include:

-Name of clai­mant

-Name of owner or reputed owner

-Name of contractor and whether

claiman­t’s contract was with the owner or agent or with the contractor

-NOTE that the contractor must be named as a party to the mechanic’s lien, and, if claimant supplied a subcontractor, the sub must be named as well, EVEN IF THE CONTRACTOR OR SUBCONTRACTOR IS IN BANKRUPTCY.   This is necessary to perfect the lien. [Accu-Fire Fabrication, Inc. v. Corrozi-Fountainview, LLC, Not Reported in A.2d, 2009 WL 537152 (Del.Super.,2009)]

-The amount claimed to be due. If the amount is fixed by the contract, attach a true and correct copy of the contract, with all modifications or amendments. If the amount is not fixed by contract, include a description of the nature and kind of labor or materials or construction management services furnished, with bill of particulars attached showing the kind and amount of labor or materials furnished or construction management services provided.

-Date of commencing to fur­n­ish labor/materials/construction management services

-Date of final delivery of labor, materials, or construction management services, or a description of which event the claimant is using as its last delivery date. General contractors must include the date of completion of the structure, as well as a description of which event the claimant is using as its last delivery date

-Location of structure with a description sufficient for identification

-Statement that the labor or materials or construction management services were furnished on the credit of the structure. Note that proof that the labor or materials were provided is prima facie evidence that they were provided on the credit of the structure.
-Amount of claim and that no part of it has been paid to claimant

-Where construction work is based on a contract with the tenant, the statement of claim must allege that the tenant obtained the property owner’s prior written consent; and the date of completion of the labor performed or of the last delivery of materials furnished. Failure to do either one of these subjects the claim to dismissal. [King Const., Inc. v. Plaza Four Realty, LLC, 976 A.2d 145 (Del.Supr.2009)]

-Amount due on each struc­ture, if one claim is filed for two or more structures. Failure to apportion can invalidate a lien, however if the work benefits the entire structure or group of structures (for example a condominium building or group of buildings or townhouses), rather than an individual unit, apportionment MAY not be required.  If the work benefits several condominium buildings but not individual units, it may be necessary to apportion among the buildings but not the units. [Accu-Fire Fabrication, Inc. v. Corrozi-Fountainview, LLC, Not Reported in A.2d, 2009 WL 537152 (Del.Super.,2009)]

-Time of recording a first mortgage which is granted to secure existing indebt­edness of future advances, as long as at least 50% of the loan proceeds are used for payment of labor or materials

–Must be supported by af­fidavit of claimant, not claimant’s attorney, that the fac­ts in claim are true and correct. DO NOT state that the above is true based on “knowledge and belief.” [2712; Schor at §9.03[C]]

We strongly recommend obtaining a copy of the bond itself to determine if any notices are required, and following any requirements set out in the bond.

Via writ of scire facias, and by personal action against owner and/or con­tractor. The state­ment/complaint essentially commences the filing of the suit. In all cases, the general contractor is a necessary party. In addition, where the claimant supplies a subcontractor or a subcontractor, the general contractor and the subcontractor must be named, as they are necessary parties to the lawsuit. [A&E Drywall Services, LLC v. Eugene A. Delle Donne & Son LP, Not Reported in A.3d, 2010 WL 4483233 (Del.Super., 2010)] NOTE ALSO that where the contract is with a tenant, the Complaint must allege that there was prior written consent to the project on the part of the landlord. [2714; Accu-Fire Fabrication, Inc. v. Corrozi-Fountainview, LLC, Not Reported in A.2d, 2009 WL 537152 (Del.Super., 2009); King Const., Inc. v. Plaza Four Realty, LLC, 976 A.2d 145 (Del.Supr.2009)]

Within 3 years after last work done on contract, un­less the terms of the bond itself require suit be brought within 1 year of date of last work done on the project by the contrac­tor. [6927, 6962]