Updated August 2025 | All statutory references in this article reflect the Delaware Code, Title 25, Chapter 27 (2024 codification)
When you are asked to sign a lien waiver during a construction project, you must carefully review the entire document and understand every provision. This becomes even more important in Delaware, where there are no statutory lien waiver forms under 25 Del. C. Chapter 27.
Without standardized forms, it can be difficult to determine whether you are signing a conditional or unconditional lien waiver. This guide explains when and how to use a Delaware conditional lien waiver upon progress payment, with practical tips for subcontractors and suppliers.
In Delaware, the duty to certify payments applies to general contractors under 25 Del. C. § 2707. However, subcontractors and suppliers are directly impacted since their payments rely on the contractor’s certification of amounts due. Understanding conditional lien waivers is therefore critical across the payment chain.
When To Use A Delaware Conditional Waiver Upon Progress Payment
You should use a Delaware conditional lien waiver upon progress payment in the following situations:
- Work on the project is ongoing.
This waiver applies only to progress payments, meaning you waive lien rights for work completed up to a specific date but not for the remainder of the project. - Payment has not yet been received.
This waiver is conditional—it only becomes effective once payment is actually made. It is common for clients to request a signed lien waiver before releasing funds.
Be cautious: pending credit card charges or uncleared checks are not considered valid payment until cleared. Delaware law confirms that payment is not “made” until funds are actually received and settled (25 Del. C. § 2712). If payment is still pending, you should only sign a conditional waiver.
Step 1: Confirm That You Are Signing The Correct Lien Waiver
Because Delaware does not provide statutory lien waiver forms, you need to look for certain indicators that identify a conditional waiver upon progress payment:
- Look for a conditional statement.
The waiver should state that it becomes effective only when payment is made. If this language is missing, it may be an unconditional waiver that binds you even if payment is never received. - Check for a “through date.”
The through date defines the scope of the waiver. You only waive lien rights for work performed through that date, not for later services or materials.
Step 2: Include Key Information In The Delaware Lien Waiver
While Delaware law does not prescribe mandatory waiver content, most lien waivers include:
- Property owner’s name
- Hiring party’s name
- Your name, address, and signature
- Property description and project location
- Description of labor or materials provided
- The “through date” of work covered
- Amount of payment expected in exchange for signing
- Reference to prior waivers signed (if any)
Tip: Courts in Delaware will generally enforce clear waiver language, even if it extends beyond lien rights. Always check that the scope of release is limited to what you intend to waive.
Best Practices Before Signing A Delaware Conditional Waive
- Check for the conditional statement.
Only sign a lien waiver that clearly states it is conditional upon actual payment. If payment has not cleared, do not sign an unconditional waiver. - Confirm the accuracy of the through date.
Make sure the through date matches the period of work being paid. Incorrect dates can cause you to waive lien rights for work that remains unpaid.
Read every provision carefully.
Some Delaware lien waivers include clauses that release more than lien rights, such as claims to retention or other payments. Do not sign unless you fully understand and agree with the language.