Updated August 2025 | All statutory references in this article reflect the Delaware Code, Title 25, Chapter 27 (2024 codification)
Lien waivers are commonly exchanged throughout a construction project. By waiving lien rights in exchange for payment, waivers protect property owners from fraudulent or duplicate mechanics’ lien claims.
In Delaware, there are no statutory lien waiver forms, and waivers are treated as contracts enforceable if clearly and knowingly signed. Under 25 Del. C. § 2707, the prime contractor must certify that all subcontractors and suppliers are paid before the owner makes final payment. While the legal duty is on the general contractor, subcontractors and suppliers are directly affected because their payment often depends on that certification.
This guide explains the circumstances and precautions to consider when signing an unconditional waiver and release upon final payment in Delaware.
When Do You Use a Delaware Unconditional Final Payment Waiver?
Before signing an unconditional waiver upon final payment, confirm whether the following situations apply:
- You have completed all work and furnished all materials under your contract.
- You have already received your final payment for the project. No further payments or work are expected.
- Because this is unconditional, the waiver becomes effective immediately when signed. If you do not yet have cleared funds, you will still lose lien rights once the waiver is executed, even if payment is later withheld.
Delaware law also prohibits advance waivers of lien rights before labor or materials are furnished (25 Del. C. § 2706). Any contract clause requiring you to waive lien rights up front is unenforceable. However, lien rights may be waived in exchange for payment once work has been performed.
Pending credit card transactions or deposited but uncleared checks do not count as actual payment. You must wait for funds to clear before relying on them. If a client insists on a waiver before releasing payment, the safer option is to use a conditional waiver upon final payment instead. Conditional waivers only become effective once payment is actually received.
Key Steps Before Signing a Delaware Unconditional Waiver
- Verify the waiver type
Delaware does not prescribe statutory forms, so language may vary. Look for the absence of conditional statements. If the waiver is effective “immediately” or has no language tying its effect to actual payment, it is unconditional. Final payment waivers also typically do not include a “through date,” which is more common in progress payment waivers. - Confirm all required details are present
Even without a statutory form, a proper waiver should identify:- The property owner’s name
- The hiring party’s name
- Your name, address, and signature
- A description of the project or property location
- A description of the labor, services, or materials provided
- The payment amount connected to the waiver
- Any previous waivers signed for the project
- If you are preparing the waiver yourself, include these details. If you are given a form, complete all sections-never leave blanks that someone else could later alter.
- Prefer conditional waivers when possible
Conditional waivers protect your lien rights until payment actually clears. If presented with an unconditional waiver, ask for cleared payment first, or request a conditional form instead. - Confirm funds are cleared
Do not sign an unconditional waiver until the money is deposited and cleared in your account. Credit card holds and unprocessed checks do not count as payment. Once signed, an unconditional waiver is binding even if the payment fails.
Read every statement carefully
Because Delaware does not mandate specific wording, some waivers may include broad language that extends beyond lien rights, such as waiving claims for extra work or change orders. Make sure the document limits itself to lien rights tied to the payment received.