Delaware Mechanics' Lien Law
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Timing for Filing Statement of Claim
A contractor who made a contract directly with an owner of the structure and has provided labor and materials toat this structure is required to file his statement of claim within one-hundred eighty (180) days after completion of the structure.21 A statement of claim is considered timely if it is filed within onehundred eighty (180) days of any of the following dates: (i) the date of the purported completion of all work called for by the contract as provided by the contract if such date has been agreed to in the contract itself; (ii) the date when the statute of limitations commences to run in relation to the particular phase or segment of work performed pursuant to the contract, to which phase or segment of work the statement of claim relates, where such date for such phase or segment has been specifically provided for in the contract itself; (iii) the date when the statute of limitations commences to run in relation to the contract itself where such date has been specifically provided for in the contract itself; (iv) the date when payment of 90% of the contract price, including the value of any work done pursuant to contract modifications or change orders, has been received by the contractor; (v) the date when the contractor submits his final invoice to the owner of such structure; (vi) with respect to a structure for which a certificate of occupancy must be issued, the date when such certificate is issued; (vii) the date when the structure has been accepted, as provided in the contract, by the owner; (viii) the date when the engineer or architect retained by the owner, or such other representative designated by the owner for this purpose, issues a certificate of completion; or (ix) the date when permanent financing for the structure is completed.22
Subcontractors, materialmen, or other persons who may obtain a lien pursuant to Delaware's mechanic lien law are to file a statement of claim within one hundred twenty (120) days from the date of completion of labor or from the date of last delivery of materials furnished.23 Such statement of claim will be timely if filed within one hundred twenty (120) days of either: (i) the date final payment, including all retainage, is due to such person; or (ii) the date final payment is made to the contractor who has contracted directly with the owner of any structure for the erection, alteration or repair of same and with whom such person has a contract, impress express or implied, for furnishing of labor or materials, or both, in connection with such erection, alteration, or repair.24
Contents of Statement of Claim
In order to obtain a lien under Delaware's mechanics' lien laws, a person must file a statement of claim in the time specified with the Prothonotary of the Superior Court in the county where structure at issue is located.25 The statement of claim may also serve as a complaint.26 The statement of claim must include: (i) claimant's name; (ii) the name of the owner or reputed owner of the structure; (iii) the name of contractor and whether the contract was made with the owner, his agent or with a contractor; (iv) the amount claimed to be due along with documentation supporting this claimed amount, such as the contract; (v) the time when the doing of labor or furnishing of materials began; (vi) the time when labor or furnishing of materials was completed; (vii) the location of the structure; (viii) that the labor or materials were provided on the credit of the structure; (ix) the amount of claim and a statement that this amount nor any part of it has been paid to plaintiff; (x) the amount claimed to be due on each structure (if lien is to apply to more than one); and (xi) the time of the first mortgage or similar encumbrance on the structure.27 The statement of claim is required to be supported by an affidavit of the claimant stating that all facts are true and correct.28
Miscellaneous Provisions
Any judgment obtained pursuant to Delaware's mechanics' lien laws will become a lien on the structure and the ground on which it sits.29 This lien will relate back to the date on which labor was begun, when the materials were first delivered or the time immediately following the recording of the first mortgage.30 Any proceeds received from a sale under Delaware's mechanics' lien statutes, if insufficient to pay all liens, will be divided among all persons who obtained liens under this law ratably without any
preference.31
The Delaware Code protects subcontractors in their relationships with general contractors through a "pay when paid" statute, 6 Del C. § 3501 et seq. This statute requires that general contractors pay their subcontractors upon receiving payment from the owner. Failure to timely pay a subcontractor creates a cause of actions against the general contractor. This statute holds that the general contractor is acting as a trustee of these funds and thus, the general contractor, as trustee, is subject to certain fiduciary duties.
21 25 Del. C. § 2711 (a) (1).
22 25 Del. C. § 2711 (a) (2).
23 25 Del. C. § 2711 (b).
24 Id.
25 25 Del. C. § 2712 (a).
26 Id.
27 25 Del. C. § 2712 (b).
28 25 Del. C. § 2712 (c).
29 25 Del. C. § 2718 (a).
30 Id.
31 25 Del. C. § 2720.
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