If you have decided to file a mechanics lien in Delaware, this step-by-step guide will tell you how. It’s important to keep in mind that in Delaware, it’s especially complicated to file a mechanics lien by yourself since an action to enforce the mechanics lien is generally incorporated with the lien filing. Because of this, and the associated requirement to file documents in court, the general prohibition against a corporation or LLC representing itself may come into play. However, once you’re ready to file, and have determined you are allowed to, just follow the steps below to start the lien process.
The challenge of construction payment
It’s unfortunate, but getting paid what you deserve can sometimes be a challenge in the construction industry. Mechanics liens are powerful tools that are here to help, but figuring out the complex statutory and practical rules and requirements to getting them filed can be confusing. Once a mechanics lien is filed, however, they can work in many different ways to get you paid. Giving the claimant an interest in the improved property itself empowers construction participants to recover the money they’ve rightfully earned, and is very effective in promoting payment.
How to File a Delaware Mechanics Lien
Steps to File a Delaware Mechanics Lien
- Prepare the lien form
Take care to include the necessary information as required by statute. Prepare an affidavit of the claimant stating that the facts in the claim / complaint are “true and correct.”
- Record the lien
Send the original copy to the Prothonotary (i.e. County Clerk) of the Superior Court in and for the county in which the property is located. The lien may be delivered to the prothonotary via mail or FedEx, or personally “walked in” to be recorded.
- Send a copy to the owner
Once the document is recorded, you must obtain a copy of the recorded lien for service on the property owner. It’s a good idea to retain an additional copy for your records.
Note that if you mailed your lien to the county for recording, or sent it via a courier, along with the proper fees for recording with the document, you must include a self-addressed stamped envelope with return instructions to receive both a copy of the recorded lien for your records, and a copy for service on the property owner.
- Notify other lien holders
Delaware law requires that notice must be provided to all additional lien holders when the lien is filed, along with furnishing a Writ of Scire Facias. If you designated the statement of claim to also be a complaint to enforce check on any additional service requirements on the defendant property owner.
Information required on the mechanics lien form
It is crucial that your Delaware mechanics lien contains all of the required information. The state actually requires quite a bit of information.
A Delaware statement of claim / complaint is required to contain the following information:
- The name of the plaintiff or claimant
- The name of the owner
- The name of the contractor and the name of the hiring party
- The amount claimed to be due
- The time when the doing of the labor or the furnishing of the materials was commenced
- The time when the doing of the labor or the furnishing of the material or the providing of the construction management services was finished
- For general contractors, the date of the completion of the structure, including a specification of the act or event upon which the contractor relies for such date
- For all other parties, the date that labor was performed or materials were furnished, or a specification of such other act or event upon which such person relies for such date
- The location of the structure with sufficient description
- That the labor was done (or materials were furnished or services were provided) on the credit of the structure
- The amount of plaintiff’s claim and that neither this amount nor any part thereof has been paid to plaintiff
- The amount which plaintiff claims to be due on each structure
- 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
The complaint and/or statement of claim shall also be supported by the affidavit of the plaintiff-claimant that the facts therein are true and correct – and this affidavit must be verified. It is not sufficient for this purpose to claim that the information is true and correct “upon information and belief” or “to the best of knowledge.” You must confirm that the information contained therein is true and correct, full stop.
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Recording the lien
Now it’s time to file that Delaware mechanics lien. If you are attempting to file the lien and associated action to enforce pro se it would likely be a benefit to call the prothonotary of the county in which the property is located to request form requirements, margins, fees, and procedure.
Prepare your lien, taking care to include the necessary information as set forth above, and prepare an affidavit of the claimant stating that the facts in the claim / complaint are “true and correct”
To record your lien, you must deliver it to the Prothonotary of the Superior Court (i.e. County Clerk) in the county in which the property is located.
Delaware Superior Court Offices
Fees
If you have decided to personally deliver the lien for recording, or if you mail/FedEx the lien to the appropriate county, you must include the proper recording fees with the lien. Lien filings are often rejected for improper fees – even if you provide too much money!
Any delay in recording can possibly cause you to miss the filing deadline.
The fees for recording the lien can be determined by calling the prothonotary, checking on the office’s website, or asking in person if you physically bring the lien for filing.
Additionally, if you are designating the statement of claim as the complaint to enforce, as well, check with the prothonotary regarding any additional formal requirements for court pleadings
Serving the property owner
Once the document is recorded, you must obtain a copy of the recorded lien for service on the property owner. You should also retain an additional copy for your records.
Note that if you mailed your lien to the county for recording, or sent it via a courier, along with the proper fees for recording with the document, you must include a self-addressed stamped envelope with return instructions to receive both a copy of the recorded lien for your records, and a copy for service on the property owner.
Writ of Scire Facias
Delaware law requires that notice must be provided to all additional lien holders when the lien is filed, along with furnishing a Writ of Scire Facias. If you designated the statement of claim to also be a complaint to enforce check on any additional service requirements on the defendant property owner.
Delivering a Delaware Mechanics Lien
As noted above, Delaware law requires that notice must be sent when a Statement of Claim is filed. A lien claimant is required to send a Notice to Lien Holders to everyone who holds a lien on the property subject to the action, as well as to any tenants holding a leasehold interest. This notice must be sent by certified mail return receipt requested.
Further, a lien claimant is required to furnish a Writ of Scire Facias. If the lien is on an occupied residence, a copy of the Writ must be left with a person residing in the residence. If the structure is not an occupied residence, the sheriff will affix a copy of the Writ to the door or other front part of the structure.
Failure to properly serve the lien or furnish the writ can invalidate the lien claim, so be careful.
Congratulations! Once the lien document has been both filed and served – it’s time to enforce your claim and get paid.
Recording a mechanics lien can be a powerful tool in making sure you are paid what you earned. The steps above can empower you to take that step when and if it becomes necessary, and make sure you are treated fairly.
