How to file a mechanics lien in Delaware

Step by step

13 steps for a subcontractor in Delaware.

1. 1

   Step 1: Find out if the job is public before you count on a lien

   Before you sign. If you are already on the job and just learned it is public, stop counting lien days and start counting bond days.

   There is no mechanics lien against publicly owned property in Delaware. A Chapter 27 lien attaches to the structure and the ground under it, and government land cannot be sold to satisfy it. If it is a State agency job, your remedy is a suit on the contractor's payment bond. If it is a federal job, your remedy is the Miller Act bond.

   Where it goes

   State job: the contracting agency holds the bond (29 Del. C. § 6962(d)(9)a requires 100% of the contract price). Federal job: the federal contracting officer holds the Miller Act bonds; suit goes in the U.S. District Court for the district where the work was performed.

   How

   State job: get a copy of the performance/payment bond from the contracting agency or the prime, then sue on the bond in any court of competent jurisdiction, in the name of the agency, for your own use. Federal job: if you have no direct contract with the prime, you must give the prime written notice within 90 days of your last work, and file suit within 1 year of your last work.

   Proof to keep

   A copy of the bond. Dated delivery tickets and signed daily reports fixing your last work date. For a federal job, the certified-mail receipt for the 90-day notice to the prime.

   What the document must contain

   • State bond suit: the sums due you from the successful bidder for materiel furnished or labor performed under the contract, brought in the name of the agency for your own use — 29 Del. C. § 6962(d)(9)d
   • Federal, no direct contract with the prime: written notice to the prime within 90 days of your last labor or material, stating with substantial accuracy the amount claimed and the party you supplied — 40 U.S.C. § 3133(b)(2)

   If you miss it: If you file a mechanics lien on a public job, you have spent your filing fee on a document with no legal effect, and the bond clock kept running while you waited. On a State job, if the bond so provides, no suit may be commenced more than 1 year after the successful bidder ceased work on the contract; otherwise the outside limit is 3 years from the date the last work was done. On a federal job the Miller Act suit limit is 1 year from your last labor or material, and the 90-day notice is a hard condition for anyone without a direct contract with the prime.

   Del. Code tit. 25 §§ 2702, 2718 (lien attaches to the structure and the ground); 29 Del. C. § 6962(d)(9)d (State public works payment bond, 1 year / 3 years); 40 U.S.C. § 3133(b)(2), (b)(4) (Miller Act, 90-day notice and 1-year suit)(opens the statute in a new tab)
2. 2

   Step 2: If a tenant hired you, get the owner's written consent before you start

   Before the work begins. The statute says PRIOR written consent. Consent obtained after you start does not save the lien.

   If the repairs, alterations or additions were ordered by a lessee or tenant, the property cannot be liened unless the owner — or the owner's authorized agent — consented in writing beforehand. This wipes out most commercial tenant fit-out work. The tenant cannot give you this consent; only the owner can.

   Where it goes

   From the property owner of record, or from an agent the owner has actually authorized in writing. Pull the deed at the county Recorder of Deeds to confirm who the owner is — do not take the tenant's word for it.

   How

   Ask for a signed consent letter from the owner, or a signed owner's-consent rider attached to your work authorization. A lease clause the landlord signed that expressly permits this work can serve, but get a lawyer's eye on it before you rely on it.

   Proof to keep

   The signed original consent, the email or letter that transmitted it, and a copy of the deed showing who the owner was on that date.

   What the document must contain

   • The owner's signature, or the signature of the owner's duly authorized agent plus proof of that authority
   • Identification of the property
   • A description of the repairs, alterations or additions being consented to
   • A date that is before your first day of work

   If you miss it: No lien on the property at all. Not a short one, not a weak one — none. A perfect, timely, fully compliant statement of claim gets dismissed. You are left with a breach-of-contract suit against the tenant, who is usually the party who ran out of money.

   Del. Code tit. 25 § 2722(opens the statute in a new tab)
3. 3

   Step 3: Get a signed written contract if the work is to the land alone

   Optional

   Before you start. This contract cannot be created after the fact.

   For improvements to land with no structure involved — drainage, dredging, filling in, irrigating, erecting banks — no lien attaches at all unless there is a written contract signed by the owner containing specific terms. This catches sitework, excavation and land-improvement outfits.

   Where it goes

   Signed by the owner of the land. Confirm ownership from the deed.

   How

   One written contract, signed by the owner or owners, containing every element below. A purchase order or an email chain will not do it.

   Proof to keep

   The signed original contract with the metes-and-bounds description attached, and the survey or legal description you used to write it.

   What the document must contain

   • Signed by the owner or owners of the land
   • The names of all parties to the contract
   • A description by metes and bounds of the land to be affected
   • A statement of the general character of the work to be done
   • The total amount to be paid under the contract
   • The amounts of the partial payments
   • The time when each partial payment is due and payable

   If you miss it: No lien attaches. Delaware courts have dismissed land-improvement lien counts on exactly this ground alongside affidavit defects (see Gray's Landing Dev., LLC v. Blackston Cove Dev., LLC, C.A. No. N22L-06-019 JRJ (Del. Super. Mar. 21, 2023)).

   Del. Code tit. 25 § 2703(opens the statute in a new tab)
4. 4

   Step 4: Send no preliminary notice — build the filing file instead

   From your first day on the job through your last. Start the file on day one.

   Delaware requires no preliminary notice, no notice of intent, no notice of furnishing and no monthly notice from anyone. We read all three subchapters of Chapter 27 section by section; no such provision exists. That is not a break — it means everything rides on one document filed at the end, and Delaware courts require strict compliance with it. Collect the proof now, while the job is fresh.

   Where it goes

   Your own records. Nothing is sent to anyone at this stage.

   How

   Keep a running job file. Every element the statement of claim will need has to come out of documents you can produce, not memory.

   Proof to keep

   Signed delivery tickets with dates. Daily reports and timesheets. Dated photographs. Change orders signed by both sides. Every invoice and every payment application, with proof of when it was sent. Your last-day date is the single most important fact in the file — make sure two independent documents prove it.

   What the document must contain

   • Your legal name exactly as you will sign it
   • The owner's or reputed owner's name, from the deed
   • The name of the contractor you contracted with, and whether your contract was with the owner, the owner's agent, or that contractor
   • A true and complete copy of your contract with every modification and change order, if your amount is fixed by contract — or a bill of particulars showing the kind and amount of labor and materials, if it is not
   • The date you first performed labor or first furnished material on the job
   • The date you last performed labor or last delivered material
   • The location and a description of the structure sufficient to identify it
   • The amount unpaid, which must exceed $25

   If you miss it: Nothing happens on the day — but you arrive at the filing deadline unable to state the elements § 2712(b) requires, and there is no second chance to gather them once the window closes.

   Del. Code tit. 25, ch. 27 (no preliminary, intent, furnishing or recurring notice provision exists in §§ 2701-2708, 2711-2729 or 2731-2737); content required at § 2712(b)(opens the statute in a new tab)
5. 5

   Step 5: Answer an owner's written demand for your supplier list within 10 days

   Within 10 days of the owner's demand. This clock is started by the owner's letter, not by any date on the calendar, so no deadline reminder will ever warn you it is running.

   The owner can demand, from time to time, a complete and accurate written list of everyone who has furnished labor or material on the job and who might be able to lien. If you do not furnish it within 10 days, you get no further payments from the owner until you do, and you lose the right to use Chapter 27 at all. This is the owner's most powerful quiet weapon and most contractors have never heard of it.

   Where it goes

   To the owner who made the demand, at the address the demand came from.

   How

   Respond in writing, in full, within 10 days. Send it certified mail, return receipt requested, and email a copy the same day.

   Proof to keep

   The owner's demand letter with its date. Your dated response. The certified-mail receipt and the return receipt. The email transmitting the same list.

   What the document must contain

   • A complete and accurate list, in writing
   • Every person who has furnished labor or material, or both, in connection with the work
   • Everyone who may be entitled to avail themselves of Chapter 27 — include suppliers to your subs, not just your own direct suppliers

   If you miss it: Two consequences, both immediate. You are entitled to receive no further payments from the owner until you furnish the list, and you "shall not be entitled to avail contractor's own self of any of the provisions of this chapter" — that is your lien right, gone, by your own silence.

   Del. Code tit. 25 § 2705(opens the statute in a new tab)
6. 6

   Step 6: Never sign a lien waiver before the money is actually in your account

   Every payment cycle, every time a waiver is put in front of you.

   An agreement waiving the right to file or enforce a Chapter 27 lien is void as against public policy and wholly unenforceable — so a blanket up-front waiver in your subcontract probably did not take away your rights. But the exception swallows a lot: a written waiver executed and delivered simultaneously with or after payment IS valid. So is a written agreement to subordinate, release or satisfy a lien made after the statement of claim is filed. Extending credit or taking a note does not by itself waive the lien, but it does stop you from filing until the agreed credit period expires.

   Where it goes

   To whoever is paying you.

   How

   Sign a waiver only when the funds have cleared, and only for the amount actually received. Never backdate. If you are handed a conditional waiver, keep the condition in writing.

   Proof to keep

   The waiver you signed, the check or wire confirmation, and the bank record showing the funds cleared — in that order, with dates that line up.

   What the document must contain

   • Match the waiver amount to the payment amount exactly
   • Name the through-date, and make it the date paid for, not the date signed
   • Keep retainage and pending change orders carved out in writing

   If you miss it: A waiver signed at or after payment is binding and will be used to knock out your claim. If you gave credit or took a note with a stated term, you cannot file until that term expires, and the § 2711 clock does not politely wait for you.

   Del. Code tit. 25 § 2706(a), (b)(opens the statute in a new tab)
7. 7

   Step 7: On an owner-occupied home, move now — do not wait out your 120 days

   The moment payment slips on a house the owner lives in. Every day you wait, the owner may pay the contractor and end your lien right.

   No lien can be obtained on lands or a structure used solely as the owner's residence once the owner has made full or final payment to the contractor, in good faith. You can be perfectly within your 120 days and still have nothing, because the homeowner paid the general contractor who then did not pay you. This is not your mistake and there is no cure — it is simply how the statute works. One protection: payments the owner makes AFTER service of process are not "in good faith," so getting the writ served stops the bleeding. If the owner has not paid in full, your lien survives but only to the extent of the balance still owed to the contractor, split pro rata among everyone who perfects a lien.

   Where it goes

   Ask the homeowner directly, in writing. Then file with the Prothonotary in the county where the house sits.

   How

   Do not wait for the deadline. Confirm in writing whether the owner has paid the contractor, and if the balance is shrinking, file and get the sheriff moving immediately.

   Proof to keep

   Written confirmation from the owner about what has been paid and when. The date and time of your filing. The sheriff's return showing when service happened, which fixes the cut-off for good-faith payments.

   What the document must contain

   • Establish whether the property is used SOLELY as the owner's residence — mixed-use or partly rented property is a different and unsettled question
   • Establish whether full or final payment has been made to the contractor, and when
   • If it has not, establish the remaining balance owed to the contractor — that is your ceiling

   If you miss it: No lien at all on that house, and no remedy against the owner. You are left chasing the contractor who already got paid.

   Del. Code tit. 25 § 2707(opens the statute in a new tab)
8. 8

   Step 8: Count 120 days from your own last day — this is your deadline

   Within 120 days from the date you completed your labor or made your last delivery of materials. YOUR last day — not the day the building was finished, not the day you gave up on getting paid, not the day the owner moved in.

   This is the rule for everybody except one narrow category of contractor (next step). On a long job your 120 days can expire many months before the structure is done. Waiting for project completion is the single most common way a Delaware sub or supplier loses a lien. The statute also gives you two alternative dates that will make your filing timely: 120 days from the date final payment including all retainage was due to you, or 120 days from the date final payment was made to the contractor you contracted with. Use whichever you can prove with a document — but never rely on a later date when an earlier one is the safe one.

   Where it goes

   Nothing is filed at this step — this is the date that governs the filing step.

   How

   Fix your last day from two independent documents. Count 120 calendar days forward. Put the filing date in your calendar two weeks early, because you will need those two weeks to prepare the statement of claim.

   Proof to keep

   Two independent documents fixing the last date. Punch-list and warranty work generally does not extend it — do not bet your lien on a return trip to fix a doorknob.

   What the document must contain

   • The exact date of your last labor or last material delivery
   • The act or event you will rely on for that date — § 2712(b)(6)b requires you to specify the act or event in the claim, not just write down a date
   • Documentary proof of that date: a signed delivery ticket, a signed daily report, or a dated inspection sign-off

   If you miss it: The lien is gone. There is no extension, no good-cause exception and no late filing. You keep an ordinary breach-of-contract claim against whoever hired you (§ 2721 preserves it), which is unsecured and only as good as that party's bank balance.

   Del. Code tit. 25 § 2711(b), (b)(1), (b)(2)(opens the statute in a new tab)
9. 9

   Step 9: File your statement of claim with the Prothonotary — this filing IS your lawsuit

   On or before your § 2711 deadline — 120 days from your own last furnishing, or 180 days from completion of the structure if you meet both conditions in the previous step. Aim to file two weeks early; the Prothonotary can reject a filing for a missing fee or a missing praecipe and you do not want that happening on day 119.

   You file a Statement of Claim, denominated as a complaint, supported by your sworn affidavit, together with a praecipe telling the Prothonotary to issue the writ of scire facias. That single act creates the claim AND commences the civil action. There is no recording, no separate foreclosure suit, and no second deadline to 'enforce' — the lawsuit is already running the moment the clerk stamps it.

   Where it goes

   Office of the Prothonotary of the Superior Court in the COUNTY WHERE THE STRUCTURE IS SITUATED — New Castle (Leonard L. Williams Justice Center, Wilmington), Kent (Kent County Courthouse, Dover), or Sussex (Sussex County Courthouse, Georgetown). This is a court, not the Recorder of Deeds. Do not take this to the recorder's office.

   How

   File with the Prothonotary in person or through the court's eFiling system (Superior Court uses File & ServeXpress; call the Prothonotary first to confirm what a self-represented filer must do). Bring the complaint, the affidavit, the praecipe, the Case Information Statement, and enough copies that one can be served on each defendant. Budget $200 — the fee schedule lists Mechanic's Liens at $200.00, and Rule 3(e) separately requires a $200 nonrefundable deposit for costs before the Prothonotary will docket anything; ask the counter clerk whether that is one payment or two.

   Proof to keep

   The Prothonotary's stamped, docketed copy with the C.A. number and the filing date. The receipt for the $200. Your entry in the county's Mechanics' Lien Docket, which § 2724 requires the Prothonotary to keep. The praecipe as filed.

   What the document must contain

   • (1) Your name as plaintiff or claimant
   • (2) The name of the owner or reputed owner of the structure
   • (3) The name of the contractor, and whether your contract was made with the owner, the owner's agent, or that contractor
   • (4) The amount claimed to be due — with a bill of particulars annexed showing the kind and amount of labor, materials or CM services if the amount is not fixed by contract, OR a true and correct copy of the contract including ALL modifications and amendments annexed if it is
   • (5) The date the labor or the furnishing of materials commenced
   • (6) The date it finished — and here is the trap: if you are a § 2711(a) contractor you must state the date of completion of the STRUCTURE together with a specification of the act or event you rely on for that date; if you are a § 2711(b) claimant you must state the date you completed labor or made your last delivery, or specify the other act or event you rely on. A bare date with no act or event named does not comply
   • (7) The location of the structure with a description sufficient to identify it
   • (8) An express statement that the labor was done, the materials furnished, or the CM services provided ON THE CREDIT OF THE STRUCTURE — software-generated forms leave this out constantly
   • (9) The amount of your claim, which must exceed $25, AND a statement that neither it nor any part of it has been paid to you
   • (10) The amount you claim to be due on EACH structure, if more than one is involved
   • (11) The time of recording of a first mortgage (or a conveyance in the nature of a first mortgage) on the structure granted to secure existing indebtedness or future advances, where at least 50% of the loan proceeds went to pay for labor or materials for that structure
   • (c) YOUR AFFIDAVIT swearing that the facts in the claim ARE TRUE AND CORRECT — those exact words. Do not write 'to the best of my knowledge and belief' or 'on information and belief'
   • Plus, under the court rules: a praecipe directing the Prothonotary to issue the writ of scire facias; a Case Information Statement; and sufficient copies of the complaint so one can be served on each defendant

   If you miss it: Miss the date and the lien is gone permanently. File on time but leave out an element and you are barely better off: Delaware construes § 2712 strictly because the lien is in derogation of the common law, and courts dismiss non-compliant claims. In Talley v. Horn the court dismissed a mechanics lien complaint because the affidavit said the facts were true 'to the best of my knowledge and belief'; in Gray's Landing the same qualifying language made the statement of claim fatally deficient. By the time a motion to dismiss is decided, your filing window has long closed.

   Del. Code tit. 25 § 2712(a), (b)(1)-(11), (c); Del. Super. Ct. Civ. R. 3(a), 3(e), 77(h)(F)(opens the statute in a new tab)
10. 10

    Step 10: Within 10 days of filing, mail and post the Notice to Lien Holders and Tenants

    Not later than ten (10) days following the filing of the action. Ten days. From filing, not from service.

    This is the step that quietly kills Delaware liens. You must certified-mail a copy of the complaint plus a written Notice to Lien Holders and Tenants of Filing of Action to every person who held a lien on the property when you filed, and to every tenant holding a leasehold for years or at will, AND physically post that notice on the building. No judgment can be entered in your case until you file proof that you did both. It is in the court rules, not in Chapter 27, so contractors reading the lien statute never see it coming.

    Where it goes

    Lienholders: at the address on the recorded or filed instrument creating the lien, or on the record of the lien, or to their counsel of record; if no address is ascertainable from the public records, their last known available or reasonably ascertainable address. Tenants: last known available or reasonably ascertainable address. Posting: the common entrance door or a common area of any building on the property.

    How

    Certified mail, postage prepaid, return receipt requested, to each lienholder and each tenant. Then you or your counsel or a representative posts the notice on the common entrance door, or in a common area, of any building on the property. Then file the proof with the court.

    Proof to keep

    Every certified-mail receipt and every green card. A dated photograph of the posted notice on the door showing the building. A title search or lien search run on the filing date, so you can prove who the existing lienholders were at that moment. The affidavit as filed with the court.

    What the document must contain

    • A copy of the complaint
    • A written Notice to Lien Holders and Tenants of Filing of Action substantially similar to Form 36 of the Superior Court Appendix of Forms
    • Then file with the Court: the post office receipt given at mailing, the return receipt (or the original returned envelope for an undelivered notice), a copy of the Notice that was mailed, and an affidavit specifying — the names and addresses of the lienholders and tenants and the dates of certified mailing; that the attached Notice is a true and correct copy of what was mailed; that the notice was posted on the common entrance door or a common area, and the date of posting; that the mailing receipt filed is the one obtained at mailing; that the return receipt filed is the one obtained at delivery; the date any undelivered envelope came back; and, for any lienholder or tenant whose identity or address cannot reasonably be ascertained, a description of the diligent efforts made plus confirmation that the Notice was published once in a newspaper of general circulation in the county of venue

    If you miss it: No judgment shall be entered in the action unless proof of the mailing and posting is filed with the Court. Your lien sits on the docket doing nothing and can never turn into money. There is no listed cure and no extension in the rule.

    Del. Super. Ct. Civ. R. 4(f)(4)(opens the statute in a new tab)
11. 11

    Step 11: Get the sheriff to serve the writ within 120 days of filing

    Service must be made within 120 days after the filing of the complaint. Separately, each writ is returnable 20 days after it is issued, so you need to be chasing the sheriff from week one, not month three.

    The Prothonotary issues the writ of scire facias; you deliver the service documents to the sheriff of the county named in your praecipe; the sheriff serves the defendant. If the defendant cannot be found in the county, the sheriff leaves a copy with someone residing in the structure if it is occupied as a residence, and if it is not so occupied, affixes a copy to the door or other front part of the structure. If two consecutive writs (the original and an alias) come back without service, the sheriff's certification that he posted the alias writ on the property and mailed a copy by both certified mail return receipt requested and first class mail to the defendants' last known address constitutes legal and sufficient service.

    Where it goes

    Sheriff of the county where the structure is situated. The writ itself is the court's SCIRE FACIAS SUR MECHANICS LIEN form, issued by the Prothonotary.

    How

    Deliver the necessary service documents to the sheriff of the county or counties specified in the praecipe. If the first writ returns unserved, immediately praecipe an alias writ — you need two returns plus the sheriff's posting-and-mailing certification to fall back on the alternative service route, and that takes time you do not have.

    Proof to keep

    The sheriff's return of service with its date. Your receipt from the sheriff's office for the service documents. Every alias writ and its return. If good cause for delay exists, a contemporaneous written record of it.

    What the document must contain

    • The praecipe must specify the writ and the county or counties for service
    • The last known address of each defendant, as stated in the praecipe — the alternative-service route depends on it
    • Sheriff's return of service, filed with the court promptly after service and in any event on the return day

    If you miss it: If service is not made within 120 days after filing and you cannot show good cause, the action shall be dismissed as to that defendant. The rule says 'without prejudice,' which sounds survivable and is not: by day 121 your § 2711 filing window has almost certainly closed, so you cannot refile. The dismissal is functionally permanent.

    Del. Super. Ct. Civ. R. 4(j) (120-day service limit); Del. Super. Ct. Civ. R. 4(a), 4(f)(4), 4(g) (delivery to sheriff, alternative scire facias service, 20-day return); Del. Code tit. 25 § 2715 (manner of service)(opens the statute in a new tab)
12. 12

    Step 12: Expect the other side's counter-moves and calendar them

    From the day you file. Exceptions can be filed any time up to 20 days after service; an affidavit of defense is due no later than the time for serving the answer; a discharge petition or a security-for-costs motion can come at any time.

    Four things the owner or defendant can do to you. (1) EXCEPTIONS: after your statement of claim is filed, the defendant may file exceptions to it at any time up to 20 days after service — this is the attack on your § 2712 content, and it is where missing elements get you dismissed. (2) AFFIDAVIT OF DEFENSE: in scire facias on mechanics liens the defendant must serve an affidavit of defense stating the nature and character of the defense, or a motion that judgment be refused; if the defence goes to part only, the defendant must specify the sum really due and you may elect judgment for that amount. If no affidavit is filed, you can take judgment by default. (3) DISCHARGE BY DEPOSIT OR SECURITY: on petition of the owner or any party in interest, your lien is discharged against the property once a sum equal to your claim is deposited with the Court, or approved security of at least that amount is entered. Your claim moves to the money — but the property is free and the owner can sell or refinance. The owner's petition must include an affidavit stating which parts of your claim are disputed and which are not, and the undisputed part must be PAID to you before the lien is discharged. If the Court finally determines the owner grossly overstated the disputed portion, it may award you damages up to twice the figure the owner called disputed. (4) SECURITY FOR COSTS: if you are not a Delaware resident at the time you file, or you move out of the State afterwards, the defendant can move for an order requiring you to post security for costs on 5 days' notice — and if you default on that order, the Court may dismiss your complaint.

    Where it goes

    Superior Court, in the county where you filed.

    How

    Answer exceptions on the merits and on time. If a discharge petition lands, check the owner's affidavit line by line: anything the owner concedes is undisputed must be paid to you before the lien comes off. If you are an out-of-state contractor, have the security-for-costs money ready before you file.

    Proof to keep

    Docket alerts on your case number. Copies of every filing by the defendant with its service date. If the owner's affidavit concedes any part of your claim, keep that page — it is an admission and it must be paid before discharge.

    What the document must contain

    • Watch for: exceptions to the statement of claim (up to 20 days after service)
    • Watch for: the affidavit of defense, or a motion that judgment be refused notwithstanding the statement of claim or complaint
    • Watch for: a petition to discharge the lien by cash deposit or approved security, with the owner's disputed/undisputed affidavit attached
    • Watch for: a motion for security for costs if you are a non-resident plaintiff, entered on 5 days' notice

    If you miss it: A defect surfaced by exceptions after your § 2711 window has closed is generally unfixable. Failing to post court-ordered security for costs can get your complaint dismissed outright. Not reading the owner's discharge affidavit means you may never collect the undisputed portion the statute says you are owed before the lien comes off.

    Del. Super. Ct. Civ. R. 12(aa3) (exceptions, 20 days after service); Del. Code tit. 25 § 2716 and Del. Super. Ct. Civ. R. 12(a) (affidavit of defense; default judgment); Del. Code tit. 25 § 2729(a)-(d) (discharge on cash deposit or security; double damages for gross overstatement); Del. Super. Ct. Civ. R. 3(f) (security for costs from a non-resident plaintiff)(opens the statute in a new tab)
13. 13

    Step 13: Take judgment, then sell the property by levari facias

    After service, once the time for the defendant's affidavit of defense has run. There is no separate statutory enforcement deadline to calendar — the § 2711 filing deadline was the deadline, and the case has been live since you filed.

    If the defendant files no affidavit of defense, you may take judgment by default at the time and in the manner the Superior Court rules prescribe. If an affidavit of defense is filed, the case proceeds like any other scire facias action. Once you have judgment, it becomes a lien on the structure and the ground under it, and it RELATES BACK to the day labor began or material was first furnished (or to just after a qualifying first mortgage was recorded, whichever is later) — that backdating is what puts you ahead of later lenders and buyers. You execute by writ of levari facias, which directs the sheriff to levy on and sell the building and lot. If the sale does not cover everybody, proceeds are divided ratably among all Chapter 27 claimants without priority of one over another.

    Where it goes

    Superior Court where you filed; the sheriff of that county conducts the sale.

    How

    Praecipe the writ of levari facias. The fee schedule charges $65.00 for each execution writ. The sheriff conducts the sale. You can also pursue an ordinary personal action against the owner or the contractor for the same debt at the same time — § 2721 expressly preserves it, and the judgment in one does not bar the other.

    Proof to keep

    The judgment and the docket entry. The Mechanics' Lien Docket entry showing the date the judgment relates back to — § 2724 requires the Prothonotary to record it. The levari facias and the sheriff's sale return.

    What the document must contain

    • The levari facias must describe the building and lot of ground according to the record
    • If you are also running a personal action on the same demand, file an affidavit in whichever suit is docketed last setting out the demand in each and stating to what extent they are identical

    If you miss it: There is no statutory clock here, but practical loss is real: if the property is sold, refinanced or the owner discharges the lien by depositing security before you move, your relation-back priority stops protecting you, and if the sale proceeds are short you take a ratable share alongside every other lien claimant.

    Del. Code tit. 25 § 2716 (default judgment; affidavit of defense); § 2718(a), (b) (lien of judgment; relation back); § 2719 (levari facias and its form); § 2720 (ratable division of proceeds); § 2721 (personal action preserved); § 2724 (Mechanics' Lien Docket); Del. Super. Ct. Civ. R. 77(h)(F) (EXECUTIONS, Each Writ $65.00)(opens the statute in a new tab)

Who can claim a lien in Delaware

Where you file

Office

Office of the Prothonotary of the Superior Court of the State of Delaware, in and for the county where the structure is situated (New Castle, Kent or Sussex). This is a COURT filing that commences a civil action (scire facias sur mechanics' lien) — it is NOT a recording with the Recorder of Deeds.

Recording fee

$200

Notarization

Not required

Sworn or verified

Affidavit

How it is served

Served by the sheriff

Copies

1

Fees and office procedures change; confirm them with the recording office before you file.

What trips people up in Delaware

• TAKING 180 DAYS BECAUSE YOU CALL YOURSELF A GENERAL CONTRACTOR. § 2711(a)(1) gives 180 days only to a contractor who BOTH contracted directly with the owner or reputed owner AND furnished both labor and material (or CM services in connection with both). A direct-contract painter who supplied only labor, or a supplier who sold straight to the owner, is a § 2711(b) claimant with 120 days from their OWN last furnishing. Same job title, 60 fewer days, and a different starting date. If you cannot prove both conditions on paper, use 120.
• CONFUSING THE TWO TRIGGER DATES. 180 days runs from completion of the WHOLE STRUCTURE. 120 days runs from YOUR OWN last labor or last material delivery. On a long job a sub's 120 days can expire many months before the building is finished. Anyone who waits for project completion is already barred.
• THINKING YOU HAVE TIME TO SUE AFTER YOU FILE. Delaware has no separate foreclosure action. § 2712(a) makes the statement of claim the complaint and § 2714(a) makes the proceeding a scire facias — the lawsuit starts the second you file. Any calendar or product showing an 'enforcement deadline' months after the filing date is telling you to sit on a case that is already running against you.
• BLOWING THE 10-DAY RULE 4(f)(4) NOTICE. Ten days after filing, you must certified-mail the complaint plus the Form 36 Notice to Lien Holders and Tenants to every existing lienholder and every tenant, and post it on the building. No judgment may be entered without filed proof of both. Ten days from filing is trivially easy to miss, it is in the court rules rather than the lien statute so contractors never read it, and there is no cure listed.
• BLOWING RULE 4(j). If the writ is not served within 120 days of filing and you cannot show good cause, the action is dismissed. It says 'without prejudice', which reads like a second chance and is not — by day 121 your § 2711 window has closed and refiling is impossible.
• WORKING FOR A TENANT WITHOUT THE OWNER'S PRIOR WRITTEN CONSENT. § 2722 bars any lien for repairs, alterations or additions made by or at the instance of a lessee or tenant without the owner's prior written consent. Commercial fit-out is one of the most common jobs a specialty contractor takes, and without that written consent obtained BEFORE the work there is no lien no matter how perfect the filing.
• IGNORING AN OWNER'S § 2705 DEMAND. If the owner demands a written list of everyone who furnished labor or material, you have 10 days. Fail and you receive no further payments until you furnish it AND you lose the right to use Chapter 27 entirely. It is triggered by the owner's letter, not by any date, so no deadline tracker will ever surface it. Treat every owner letter asking for a supplier list as an emergency.
• RESIDENTIAL SUBS WAITING OUT THE 120 DAYS. § 2707 bars any lien on a property used solely as the owner's residence once the owner has paid the contractor in full or finally, in good faith. A sub still well inside its 120 days can be wiped out simply because the homeowner paid the GC. Move early. One narrow protection: payments the owner makes after service of process are not 'in good faith', so getting served matters.
• VERIFYING ON INFORMATION AND BELIEF. § 2712(c) demands an affidavit that the facts 'are true and correct.' Delaware Superior Court has dismissed mechanics lien claims for saying 'to the best of my knowledge and belief' instead — Talley v. Horn, C.A. No. S23L-03-002 RHR (Del. Super. July 25, 2023); Gray's Landing Dev., LLC v. Blackston Cove Dev., LLC, C.A. No. N22L-06-019 JRJ (Del. Super. Mar. 21, 2023). Use the statute's exact words.
• LEAVING OUT A § 2712(b) ELEMENT. Eleven elements plus the affidavit, and the statute is strictly construed because the lien is in derogation of the common law (D.W. Burt Concrete Constr., Inc., C.A. No. S13L-10-043 RFS (Del. Super. Feb. 17, 2016)). The three most commonly omitted by form software: (b)(8) the express statement that the work was done on the credit of the structure; (b)(11) the time of recording of a qualifying first mortgage; and (b)(6)'s requirement to SPECIFY THE ACT OR EVENT relied on for the completion date rather than just writing a date.
• FILING IN THE WRONG OFFICE. This is a Superior Court filing with the Prothonotary in the county where the structure sits. It is NOT a recording with the Recorder of Deeds. A claimant who takes it to the recorder has not filed a lien and usually finds out after the window has shut.
• TREATING A PUBLIC JOB LIKE A PRIVATE ONE. No mechanics lien exists against publicly owned property. On a State agency job your remedy is a suit on the contractor's bond, and if the bond so provides no suit may be commenced more than 1 year after the successful bidder ceased work (otherwise 3 years from the last work done). 29 Del. C. § 6962(d)(9)d. A lien filed on a public job is a document with no legal effect and the bond clock kept running while you prepared it.
• SIGNING A WAIVER AT THE WRONG MOMENT. A waiver signed BEFORE payment is void as against public policy under § 2706(b), so you may still have rights you think you gave up. But a waiver executed simultaneously with or after payment is fully valid and binding — as is any agreement to subordinate, release or satisfy the lien made after the statement of claim is filed.
• FORGETTING THE PRAECIPE, THE CIS, OR THE COPIES. Rule 3(a) requires the complaint plus a praecipe directing the Prothonotary to issue the writ, a Case Information Statement, and sufficient copies so one can be served on each defendant. Rule 3(e) requires a $200 nonrefundable deposit before the Prothonotary will docket anything. Any of these missing on day 119 means you do not get filed on day 119.
• LETTING THE OWNER DEFINE 'COMPLETION' FOR YOU. If you are relying on the 180-day window, the clock runs from completion of the structure — and several of the nine § 2711(a)(2) events are fired by the other side: the owner accepting the structure, the architect or engineer issuing a certificate of completion, a certificate of occupancy being issued, permanent financing being completed. Any of these can fix an earlier completion date than the one in your head. Pick the event you can document, name it in the claim, and count from the earliest one that plausibly applies.
• ASSUMING A SMALL CLAIM FOLLOWS THE SAME RULES. Subchapter III (§§ 2731-2737) provides a Justice of the Peace route for labor claims under $100 with a far shorter and stranger window: you may not file before 20 days have expired from your last labor, and you must then file within 10 days after that 20 days — a 30-day window in total. Nearly obsolete given the $25 floor in § 2702, but it is the only sub-120-day filing window in the chapter.

After you file

• 10 DAYS — mail and post the Notice to Lien Holders and Tenants. Certified mail, return receipt requested, a copy of the complaint plus a written Notice substantially similar to Form 36, to every lienholder of record as of the filing date and to every tenant holding a leasehold for years or at will; then post it on the common entrance door or in a common area. Del. Super. Ct. Civ. R. 4(f)(4). Source(opens the statute in a new tab)
• THEN — file the proof. The post office mailing receipt, the return receipt (or the returned envelope), a copy of the mailed Notice, and an affidavit covering the seven items the rule lists. NO JUDGMENT MAY BE ENTERED IN YOUR ACTION until this proof is on file. Del. Super. Ct. Civ. R. 4(f)(4).
• 20 DAYS FROM ISSUANCE — the writ is returnable. Original process, whether the original, alias or pluries writ, is returnable 20 days after issuance, and the server must return it promptly after service and in any event on the return day. Del. Super. Ct. Civ. R. 4(g).
• 120 DAYS FROM FILING — the writ must be served or the action is dismissed. If service of the summons and complaint is not made within 120 days after filing and you cannot show good cause, the action shall be dismissed as to that defendant. It is nominally without prejudice, but your § 2711 filing window has closed by then, so it is permanent. Del. Super. Ct. Civ. R. 4(j).
• IF SERVICE FAILS TWICE — two returns without service on two consecutive writs (the original and an alias), followed by the sheriff's certification that he posted a copy of the alias writ on the property and mailed a copy by both certified mail return receipt requested and first class mail to the defendants' last known address as stated in the praecipe, constitutes legal and sufficient service. You must praecipe the alias writ early enough for both returns to land inside the 120 days. Del. Super. Ct. Civ. R. 4(f)(4).
• UP TO 20 DAYS AFTER SERVICE — the defendant may file exceptions to your statement of claim. Del. Super. Ct. Civ. R. 12(aa3).
• NO LATER THAN THE TIME FOR SERVING THE ANSWER — the defendant must serve an affidavit of defense in conformity with the statute, or a motion that judgment be refused notwithstanding the statement of claim or complaint. If none is filed, judgment by default may be entered for you. Del. Code tit. 25 § 2716; Del. Super. Ct. Civ. R. 12(a). Source(opens the statute in a new tab)
• AT ANY TIME — the owner or any party in interest may petition to discharge your lien against the property by depositing cash equal to your claim with the Court, or by entering approved security of at least that amount. The petition must include an affidavit identifying the disputed and undisputed parts, and the undisputed part must be PAID to you before the lien is discharged. Del. Code tit. 25 § 2729. Source(opens the statute in a new tab)
• AT ANY TIME, IF YOU ARE OUT OF STATE — the defendant may move on 5 days' notice for an order requiring you to post security for costs, and the Court may dismiss your complaint if you default on that order. Del. Super. Ct. Civ. R. 3(f).
• AFTER JUDGMENT — execute by writ of levari facias ($65.00 per execution writ under the Rule 77(h) fee schedule). Judgment relates back to the day labor began or material was first furnished, or to just after the recording of a qualifying first mortgage, whichever last occurred. Proceeds short of all liens are divided ratably with no priority among Chapter 27 claimants. Del. Code tit. 25 §§ 2718, 2719, 2720. Source(opens the statute in a new tab)