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TITLE 25 PROPERTY
PART II MORTGAGES AND OTHER LIENS
CHAPTER 27 MECHANICS’ LIENS
SUBCHAPTER I GENERAL PROVISIONS
2701 Definitions
2702 Persons Entitled to Lien
2703 Requirements for Lien on Land
2704 Corporations or Individuals
2705 Lists of Suppliers of Labor and Materials, Demand
2706 Waivers of Liens
2707 Restrictions on Liens on Residences; Certifications and
Releases
2708 Subcontractor Liens, Fringe Benefits
SUBCHAPTER II ENFORCEMENT IN SUPERIOR
COURT
2711 Time for Filing Statement of Claims
2712 Contents of Statement of Claims, Complaint
2713 Liens Against Two or More Structures
2714 Scire Facias
2715 Writ of Scire Facias
2716 Default, Defense
2717 Proof of Claim
2718 Judgment Lien
2719 Execution
2720 Ratable Division
2721 Personal Actions
2722 Work Ordered by Tenants
2723 Withholding Funds from Contractor
2724 Mechanics Lien Docket
2725 Lien and Personal Action
2726 Liens on Vessels
2727 Audits, Reports
2728 Attachments, Judgments
2729 Cash Deposit, Security
2731 Lien for Less Than $100
2732 Time for Filing Claim
2733 Statement of Claim
2734 Summons, Failure to Appear
2735 Transcript of Judgment
2736 Execution
2737 Transferred
DELAWARE CODE
TITLE 25 PROPERTY
PART II MORTGAGES AND OTHER LIENS
CHAPTER 27 MECHANICS’ LIENS
SUBCHAPTER I GENERAL PROVISIONS
2701 Definitions
As used in this chapter, unless the context requires a different
meaning.
(1) “Labor” includes work.
(2) “Structure” includes a building or house.
2702
Persons Entitled to Lien
(a)
It shall be lawful for any person having performed or furnished
labor or material, or both, to an amount exceeding $25 in
or for the erection, alteration or repair of any structure,
in pursuance of any contract, express or implied, with the
owners of such structure or with the agent of such owner or
with any contractor who has contracted for the erection, alteration
or repair of the same and for the furnishing of the whole
or any part of the materials therefore, including any person
who has performed or furnished labor or material, or both,
for or at such structure under a contract with or order from
any subcontractor to obtain a lien upon such structure and
upon the ground upon which the same may be situated or erected.
(b)
Liens may also be obtained in connection with: labor performed
and materials furnished in plumbing, gas fitting, paper hanging,
paving, placing iron works and machinery of every kind in
mills and factories, bridge building, the erection, construction
and filling in of wharves, piers and docks and all improvements
to land by drainage, dredging, filling in, irrigating and
erecting banks and the services rendered and labor performed
and materials furnished by architects.
2703
Requirements for Lien on Land
No
lien shall attach in case the improvements are to the land
alone, unless a contract in writing, signed by the owner or
owners thereof, setting forth the names of all parties to
the contract and containing a description by the metes and
bounds of the land to be affected and by a statement of the
general character of the work to be done, and of the total
amount to be paid thereunder, and the amounts of the partial
payments, together with the time when such payments shall
be due and payable.
2704
Corporations or Individuals
Liens
may be filed for or against corporations or individuals.
2705
Lists of Suppliers of Labor and Materials, Demand
The
owner of any structure built, repaired or altered by any contractor
or subcontractor may require such contractor or subcontractor
from time to time to furnish and submit to him a complete
and accurate list in writing of all persons who have furnished
labor or material, or both, in connection therewith, and who
may be entitled to avail themselves of the provisions of this
chapter. Should any such contractor or subcontractor fail
to furnish such list for 10 days after demand made therefore
by such owner, he shall be entitled to receive no further
payments from the owner until such list be furnished and shall
not be entitled to avail himself of any of the provisions
of this chapter.
2706
Waivers of Liens
(a)
Persons entitled to avail themselves of the lien provided
for in this chapter shall not be considered as waiving the
same by granting a credit or receiving notes or other securities,
unless the same be received as payment or the lien expressly
waived, but the sole effect thereof shall be to prevent such
persons from availing themselves of the liens provided for
in this chapter until the expiration of the time agreed upon.
(b)
Notwithstanding the provisions of any other law, except as
provided in this subsection: 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. This section shall
not preclude a requirement for 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 for the labor performed
or the materials supplied has been made to such contractor,
subcontractor, material supplier or laborer nor shall this
section be applicable to a written agreement to subordinate,
release or satisfy all or part of such lien made after a statement
of claim has been filed under this chapter. Nothing in this
subsection shall amend, exempt, limit or qualify the provisions
of section 2707 of this title.
2707
Restrictions on Liens on Residences; Certifications and Releases
No lien shall be obtained under this chapter upon the lands,
structure, or both, of any owner which is used solely as a
residence of said owner when the owner has made either full
or final payment to the contractor, in good faith, with whom
he contracted for the construction, erection, building, improvement,
alteration or repair thereof. Prior to or simultaneous with
the receipt of any full or final payment by the contractor,
the contractor must provide the owner either (1) a notarized,
verified written certification that the contractor has paid
in full for all labor performed and materials furnished to
the date of such full or final payment in or for such construction,
erection, building, improvement, alteration or repair or (2)
a written release of mechanics’ liens signed by all
persons who would otherwise be entitled to avail themselves
of the provisions of this chapter, containing a notarized,
verified certification signed by the contractor that all of
the persons signing the release constitute all of the persons
who have furnished materials and performed labor in and for
the construction, erection, building, improvement, alteration
and repair to the date of the release and who would be entitled
otherwise to file mechanics’ liens claims. Failure of
the contractor to provide the owner a written certification
or a release of mechanics’ liens at such time shall
constitute sufficient cause for the immediate suspension,
revocation or cancellation of the contractor’s occupational
and business licenses. If the owner has not made full payment
in good faith to such contractor, the lien may be obtainable
in accordance with this chapter, but it shall be a lien only
to the extent of the balance of the payment due such contractor,
which balance or portion shall be payable pro rata among the
claimants who perfect liens. Payments made to the contractor
by the owner after service of process, as provided in section
2715 of this title, shall not be deemed to be “in good
faith.”
2708 Subcontractors Liens, Fringe Benefits
A mechanics’ lien may be used to secure payment of any
unpaid amounts due under contract from the contractor arising
from a subcontractor’s labor including payment of fringe
benefit items. As used in this section, the phrase “fringe
benefit items” shall have the same meaning as the phrase
“benefits or wage supplements” defined in s 1109(b)
of Title 19.
SUBCHAPTER II ENFORCEMENT IN SUPERIOR
COURT
2711 Time for Filing Statements of Claims
(a) A contractor who (1) has made his contract
directly with the owner or reputed owner of any structure
and (2) has furnished both labor and material in and for such
structure shall file no statement of claim until after the
expiration of 90 days from the completion of such structure
contracted for by him; but such contractor, in order to avail
himself of the benefits of this subchapter, shall file his
statement of claim within 30 days after the expiration of
the 90-day period.
(b) All other persons embraced within this chapter and entitled
to avail themselves of the liens herein provided for shall
file a statement of their respective claims within 90 days
from the completion of the labor performed or from the last
delivery of materials furnished by them respectively.
2712 Contents of Statement of Claims, Complaint
(a) Every person entitled to the benefits conferred by this
chapter and desiring to avail himself of the lien provided
for in this chapter, shall, within the time specified in this
chapter, file a statement of claim, which may also serve as
a complaint when so denominated, in the office of the Prothonotary
of the Superior Court in and for the county wherein such structure
is situated.
(b) The complaint and/or statement of claim shall set forth:
(1) The name of the plaintiff or claimant;
(2) The name of the owner or reputed owner of the structure;
(3) The name of the contractor and whether the contract of
the plaintiff-claimant was made with such owner or his agent
or with such contractor;
(4) The amount claimed to be due, the nature and kind of the
labor done or materials furnished with a bill of particulars
annexed, showing the kind and amount of labor done or materials
furnished;
(5) The time when the doing of the labor or the furnishing
of the materials was commenced;
(6) The time when the doing of the labor or the furnishing
of the materials was finished;
(7) The location of the structure with such description as
may be sufficient to identify the same;
(8) That the labor was done or the materials were furnished
on the credit of such structure;
(9) The amount of plaintiff’s claim (which must be in
excess of $25) and that neither this amount nor any part thereof
has been paid to plaintiff; and
(10) The amount which plaintiff claims to be due him on each
structure.
(11) The time of recording of a first mortgage, or a conveyance
in the nature of a first mortgage, upon such structure which
is granted to secure an existing indebtedness or future advances
provided at least 50% of the loan proceeds are used for the
payment of labor or materials, or both, for such structure.
(c) The complaint and/or statement of claim shall be supported
by the affidavit of the plaintiff-claimant that the facts
therein are true and correct.
2713 Liens Against Two or More Structures
In every case in which 1 claim for labor or materials is filed
by the same person against 2 or more structures owned by the
same person for building, altering or repairing 2 or more
structures owned by the same person, the claimant shall, at
the time of filing such joint claim, designate the amount
which he claims to be due to him on each of such structures.
2714 Scira Facias
(a) The proceedings to recover the amount of any claim shall
be by writ of scire facias.
(b) The writ of scire facias used under the provisions of
this chapter shall be in the form prescribed by the Superior
Court.
2715 Writ of Scire Facias
The writ shall be issued, returnable and served in the same
manner as other writs of scire facias upon the defendant therein
named, if he can be found within the county. A copy of the
writ shall be left with some person residing in the structure
to which the labor was done or for which the materials were
furnished, if occupied as a place of residence, but if not
so occupied, the sheriff shall affix a copy of such writ upon
the door or other front part of such structure.
2716 Default, Defense
Judgment by default may be entered for the plaintiff at such
time and in the manner prescribed by the rules of the Superior
Court, unless the defendant has previously filed in the cause
an affidavit that he verily believes there is a legal defense
to the whole or part of such cause of action and setting forth
the nature and character of the defense. If the defense is
to a part only, then the defendant shall specify the sum really
due, and judgment may be entered for the plaintiff at his
election for the sum acknowledged to be due. If judgment is
not so entered by default, then like proceedings shall be
had as in other cases of scire facias.
2717 Proof of Claim
Proof by the claimant that labor or materials, or both, was
performed or furnished upon or to any structure, or immediately
adjacent thereto, shall be prima facie evidence that the same
was performed or furnished for and on the credit of such structure.
2718 Judgment Lien
(a) Any judgment obtained under a claim made in accordance
with this subchapter shall become a lien upon such structure
and upon the ground upon which the same is situated, erected
or constructed and shall relate back to the day upon which
the labor was begun or the furnishing of material was commenced,
or the time immediately following the time of recording of
a first mortgage, or a conveyance in the nature of a first
mortgage, upon such structure which is granted to secure an
existing indebtedness or future advances provided at least
50% of the loan proceeds are used for the payment of labor
or materials, or both, for such structure, whichever shall
last occur. (b) In the case of the erection, construction
and filling in of wharves, piers and docks and improvements
to land, the liens shall extend to the lots or lands in front
of which improvements are made.
2719
Execution
The execution of every judgment under the foregoing provisions
shall be by writ of levari facias in the following form: “_________County,
ss.:
The State of Delaware.
To the Sheriff of said County, greeting:
We command you that without any other writ from us of the
following described building and lot of ground, to wit (describing
the same according to the record), in your bailiwick, you
cause to be levied as well a certain debt of ____ which _____.
lately in our Superior Court for the County aforesaid, before
the Judges thereof, recovered against .____ to be levied of
the said building and lot of ground, as also the interest
thereon from the ______ day of ____ A. D.,.____. and also
the sum of ._______ for the cost which accrued thereon, according
to the form and effect of an act of the General Assembly in
such cases made and provided, and have you there moneys before
our Judges at ______ at our Superior Court in and for the
County of _______ there to be held on the ______day of ____
next to render unto the said _________ for his debt, interest
and costs aforesaid, and have you then there this writ.”
Witness (as in similar writs).
2720
Ratable Division
If the proceeds received from any sale under the writ of levari
facias is not sufficient to pay in full all liens, such proceeds
shall be ratably divided among the persons who have availed
themselves of the provisions of this chapter without priority
or preference of one over the other.
2721 Personal Actions
(a) Nothing contained in this subchapter shall be construed
to impair or otherwise affect the right of any person to whom
any debt may be due for labor done or materials furnished
to maintain any personal action against the owner or contractor
of such structure to recover the amount of such debt.
(b) Nothing contained in this subchapter shall be construed
to impair or otherwise affect the right of any person to whom
any debt may be due for labor done or materials furnished
in the erection, alteration or repair of any structure to
maintain any personal action against the owner or reputed
owner of the structure or against any contractor or against
the same and other contracting parties for the same or for
any greater or less demand before, concurrently with or after
the proceedings for obtaining the lien upon the structure
as provided in this chapter, and the judgment whether for
the plaintiff or defendant or any of the defendants in such
personal action shall in no wise impair, alter or affect the
lien or the proceedings or judgment or execution provided
for in this chapter.
2722 Work Ordered by Tenants
Nothing contained in this subchapter shall be construed to
render property liable to liens under this chapter for repairs,
alterations or additions, when such property has been altered,
added to or repaired by or at the instance of any lessee or
tenant without the prior written consent of the owner or his
duly authorized agent.
2723 Withholding Funds from Contractor
The owner of any structure built, repaired or altered by any
contractor who has contracted to build, erect, alter or repair
the same and furnish the materials therefore may, in case
any liens are entered under this chapter upon the structure,
upon any claim for materials which by the terms of his contract
the contractor was bound to furnish, by any person or persons
other than such contractor, retain and withhold from such
contractor so much of the moneys to be paid to him in pursuance
of the contract made with such contractor as may be necessary
to liquidate and discharge such liens; and, in case judgment
is recovered by such lien creditors, the owner may apply the
moneys or such part thereof as may be necessary to satisfy
the judgment to the payment and satisfaction thereof. Such
payment shall be considered and treated as a payment pro tanto
to the contractor towards the moneys provided to be paid by
the contractor.
2724 Mechanics Lien Docket
The Prothonotary in each county of this State shall procure
and keep a docket, to be called “The Mechanics’
Lien Docket,” in which he shall make an entry of each
claim filed, setting down therein the names of the parties,
plaintiff and defendant, the amount claimed, the day upon
which the claim is filed and of the issuing of the scire facias,
a description of the property against which the claim is sought
to be charged, amount for which judgment is rendered, the
day on which the same is rendered, the party for and against
whom it is rendered and, in case of judgment for the plaintiff,
the time to which the judgment relates back as a lien and
other entries necessary and proper to a full understanding
of the case. The time to which the judgment relates back as
a lien shall be ascertained in the same manner as the amount
of the judgment is ascertained.
2725 Lien and Personal Action
(a) When the claimant proceeds under this chapter for availing
himself of his lien and institutes any personal action for
the same demand or any part thereof or for a demand of which
the amount for which he claims a lien is a part, it shall
be no objection in either suit that some of the parties defendant
in the 1 suit are not also parties defendant in the other
suit. In any such personal action or in the suit to avail
himself of the lien, whichever is last docketed, the plaintiff
shall file an affidavit setting out the demand in each of
the suits and stating to what extent the respective demands
are identical. The judgment in either of the actions shall
not be pleaded as a bar in the other action.
(b) Whenever any moneys are applied on the judgment on either
of the demands pursuant to the execution thereof or pursuant
to any other execution proceedings, the Superior Court may
order all or any part to be credited on the judgment in the
other of the demands according to the equity of the matter
as the equity appears to the Court.
2726 Liens on Vessels
This subchapter shall also extend to labor or materials performed
or furnished in the construction, alteration, furnishing,
rigging, launching or repairing of any ship or vessel within
this State. No bill of particulars and affidavit shall be
filed more than 1 year after such ship or vessel has been
launched, rigged, furnished and ready for sea or after such
repairs have been completed and shall contain the name of
the ship or vessel or a description thereof sufficient for
identification. Upon filing the bill of particulars and affidavit
under the provisions of this section, the Prothonotary may
issue a writ of attachment, directed to the sheriff of the
county in which the ship or vessel may be, commanding the
sheriff to attach the defendant by such ship or vessel, together
with the tackle, apparel and furniture, wheresoever the same
may be found in his bailiwick, so that he appears at the next
term of the Superior Court to answer the plaintiff’s
demands. The sheriff shall, under such writ, seize and take
possession of the ship or vessel and have the same inventoried
and appraised and shall be answerable therefore. If the defendant
in the attachment at any time before judgment appears and
enters into recognizance to the plaintiff in the writ of attachment
in a reasonable penalty and with surety to be approved by
the Prothonotary with condition to pay the condemnation money
and all costs or otherwise abide the judgment of the Superior
Court in the case and if he fails to make good his plea, the
attachment shall be dissolved, the ship or vessel shall be
discharged, and the case shall proceed as in other cases of
assumpsit for work and labor or materials furnished.
2727
Audits, Reports
On the return of the writ of attachment or summons the Court
may, upon petition of any person claiming to have performed
or furnished labor or materials at the request of the plaintiff
or plaintiffs in the attachment, appoint 3 suitable persons
to audit and determine the claim of the plaintiff and also
the claim of the petitioner, who shall adjust and ascertain
all the demands, including that of the plaintiff in the writ.
The auditors shall severally be sworn or affirmed to perform
their duties according to the best of their skill and knowledge.
They shall give 10 days notice to the parties of the time
and place of their first meeting by advertisement, posted
at the courthouse door and at least 5 other public places
in the county. Their subsequent sittings shall be by adjournment
duly made and publicly announced. They may investigate any
claim presented in any form they judge best and may examine
any of the parties upon oath or affirmation. On receipt of
the proceeds of the sale of the property attached or against
which judgment is obtained or any part thereof, the auditors
shall calculate and settle the proportions and dividends due
the several parties and shall make report to the next term
of the Court after such appointment and, upon confirmation
of the report, pay over to the several parties their respective
share of the proceeds according to such appointment. The Court
may hear exceptions to and correct such account and report,
either in the calculations, dividends, apportionment, or otherwise.
2728 Attachments, Judgments
If the attachment has not been dissolved, as provided in this
subchapter, judgment may be given for the plaintiff in the
attachment at the second term after issuing the writ as in
other cases of attachment, and hereupon the Court may order
that the sheriff shall sell the property attached, on due
notice, and pay the proceeds, deducting legal costs and charges,
to auditors for distribution. Any balance remaining due from
the defendant in the attachment to any of the parties after
such distribution of the proceeds may be collected as other
debts, and any surplus after paying costs shall be returned
to the defendant or his executors, administrators or assigns.
All sales made under this subchapter shall be good against
the defendant, his executors, administrators or assigns.
2729 Cash Deposit, Security
(a) Cash deposit. ¾ Any claim filed hereunder shall,
upon petition of the owner or any party in interest, be discharged
as a lien against the property whenever a sum equal to the
amount of the claim shall have been deposited with the Court
in said proceedings for application to the payment of the
amount finally determined to be due. Said petition shall include
an affidavit by the owner or party in interest setting forth
which parts of the claim filed hereunder are disputed and
which parts are not disputed. The nondisputed part of the
claim shall be paid to the claimant before the lien against
the property is discharged. If it is finally determined by
the Court that the disputed portion of the claim has been
grossly overstated by the affiant, the Court may, in its discretion,
award damages to the claimant against the affiant in an amount
up to twice the figure stated by the affiant to be disputed.
(b) Refund of excess. ¾ Any excess of funds paid into
Court as aforesaid, over the amount of the claim or claims
determined and paid therefrom, shall be refunded to the owner
or party depositing same upon application.
(c) Security in lieu of cash. ¾ In lieu of the deposit
of any such sum or sums in cash, approved security may be
entered in such proceedings in an amount which the Court shall
approve, which, however, shall in no event be less than the
full amount of such required deposit; and the entry of such
security shall entitle the owner to have such liens discharged
to the same effect as though the required sums have been deposited
in Court as aforesaid.
(d) Authority of Court. ¾ The Court, upon petition
filed by any party, and after notice and hearing, may upon
cause shown:
(1) Require the increase or decrease of any deposit or security;
(2) Strike off security improperly filed;
(3) Permit the substitution of security and enter an exoneration
of security already given.
2731 Lien for Less Than $100
Any person having performed any labor to any amount less than
$100 in or for the erection, alteration or repair of any structure
or bridge, in pursuance of any contract, expressed or implied,
with the owner or reputed owner of such structure or bridge
or with any contractor who has contracted for the erection,
alteration or repair of any structure or bridge, or any part
thereof, may obtain a lien upon such structure or bridge and
upon the ground upon which the same may be situated or erected
in the manner provided in this subchapter.
2732 Time for Filing Claim
No person having done or performed any labor in or about the
erection, alteration or repair of any structure or bridge
shall be allowed to file any statement of his claim before
a justice of the peace until after the expiration of 20 days
from the time of the last labor done or performed by him,
but, in order to avail himself of the benefits of this subchapter,
he shall file his claim within 10 days after the expiration
of the 20 days aforesaid. Any person entitled to the benefits
of this subchapter shall file his claim under oath, within
the time above specified, with any justice of the peace of
the county wherein such structure or bridge is situated.
2733 Statement of Claim
The statement of claim shall set forth the names of the party
claimant, the owner or reputed owner of the structure or bridge,
the contractor and the kind of labor done and whether the
contract was with the owner or his agent or with the contractor,
the sum claimed to be due, the time when the labor was commenced
and finished, the location of such structure or bridge, the
ground upon which the same is situated, and a description
sufficient to identify the same.
2734 Summons, Failure to Appear
Immediately upon the filing of any claim under this subchapter,
the justice of the peace with whom the claim is filed shall
issue a summons, as in other civil cases, to the owner and
contractor, directed to any constable of the county. The time
for the defendant’s appearance shall not be more than
3 days from the date of the summons, and not more than 2 adjournments
shall be had and then only from day to day. If the defendant
fails to appear at the time appointed or if after a hearing
the justice is satisfied of the correctness of the claim,
he shall give judgment as in other cases and, upon the payment
of cost and a demand for the transcript, he shall furnish
such transcript.
2735
Transcript of Judgment
The
transcript and judgment may be entered in the Superior Court
of the county in which the structure is situated and, when
so entered, if within 2 days from the date of the judgment,
shall become a lien on such structure or bridge and upon the
ground upon which the same is erected and shall relate back
to the day when the labor was commenced and shall take priority
accordingly. Any and all transcripts taken and entered in
the Superior Court under this subchapter shall contain a description
of the property upon which it is to become a lien and shall
conform to the description set forth in the plaintiff’s
statement. All costs and charges shall follow the judgment
and shall be the same as are authorized by law in civil cases
before justices of the peace. Every contractor, when so required,
shall give ample security to the owner of any structure being
altered, erected or repaired by him to save such owner harmless
from the provisions of this subchapter.
2736
Execution
The
execution of every judgment entered in the Superior Court
upon transcript under the provisions of this subchapter shall
be by writ of levari facias in the following form:
“__________
County, ss.:
The
State of Delaware.
To
the Sheriff of said County, Greeting:
We
command you that without any other writ from us, of the following
described building and lot of ground, to wit (describing the
same according to the record) in your bailiwick, you cause
to be levied as well a certain debt of _______ which _______
lately before one of the justices of the peace for the County
aforesaid recovered against ________. to be levied of the
said building and lot of ground, as also the interest thereon
from the .________ day of ._______ A.D ..________ and also
the sum of .______ for the costs which accrued thereon according
to the form and effect of an Act of the General Assembly in
such cases made and provided, and have you there the moneys
before our Judges at _______ at our Superior Court in and
for the County of ._______ there to be held on the .______
day of _______ next, to render unto the said ._____ for his
debt, interest and costs aforesaid and have you then there
this writ.”
Witness
(as in similar writs).
2737
Transferred
[To
section 2729 of Subchapter II of this chapter. |
