§ 2711 Time for filing of statement of claim.
(a) (1) A contractor who:
a. Has made that contractor’s contract directly with the owner or reputed owner of any structure; and
b. Has furnished both labor and material in and for such structure, or has provided construction management services in connection with the furnishing of such labor and material, in order to avail himself or herself of the benefits of this subchapter, shall file that contractor’s statement of claim within 180 days after the completion of such structure.
(2) For purposes of this subsection, and without limitation, a statement of claim shall be deemed timely if it is filed within 180 days of any of the following:
a. The date of purported completion of all the work called for by the contract as provided by the contract if such date has been agreed to in the contract itself;
b. 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;
c. 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;
d. 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;
e. The date when the contractor submits that contractor’s own final invoice to the owner or reputed owner of such structure;
f. With respect to a structure for which a certificate of occupancy must be issued, the date when such certificate is issued;
g. The date when the structure has been accepted, as provided in the contract, by the owner or reputed owner;
h. The date when the engineer or architect retained by the owner or reputed owner, or such other representative designated by the owner or reputed owner for this purpose, issues a certificate of completion; or
i. The date when permanent financing for the structure is completed.
(b) All other persons embraced within this chapter and entitled to avail themselves of the liens herein provided shall file a statement of their respective claims within 120 days from the date from the completion of the labor performed or from the last delivery of materials furnished by them respectively. For purposes of this subsection, and without limitation, a statement of claim on behalf of such person shall be deemed timely if it is filed within 120 days of either of the following:
(1) The date final payment, including all retainage, is due to such person; or
(2) The date final payment is made to the contractor:
a. Who has contracted directly with the owner or reputed owner of any structure for the erection, alteration or repair of same; and
b. With whom such person has a contract, express or implied, for the furnishing of labor or materials, or both, in connection with such erection, alteration or repair.
§ 2712 Requirements of complaint or statement of claim.
(a) Every person entitled to the benefits conferred by this chapter and desiring to avail himself or herself 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, and, if the amount is not fixed by the contract, a statement of 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 or construction management services provided; provided, that if the amount claimed to be due is fixed by the contract, then a true and correct copy of such contract, including all modifications or amendments thereto, shall be annexed;
(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 material or the providing of the construction management services was finished, except that:
a. With respect to claims on behalf of contractors covered by § 2711(a) of this title, the date of the completion of the structure, including a specification of the act or event upon which the contractor relies for such date, and
b. With respect to claims on behalf of other persons covered by § 2711(b) of this title, the date of completion of the labor performed or of the last delivery of materials furnished, or both, as the case may be, or a specification of such other act or event upon which such person relies for such date.
(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 or the construction management services were provided on the credit of the 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 Claims against 2 or more structures owned by same person.
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 the claimant claims to be due to that claimant on each of such structures.
§ 2714 Proceedings by scire facias; form.
(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 Issuance and service 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 judgment; affidavit of 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 the defendant 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 the plaintiff’s own 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 work done or materials furnished as prima facie evidence of extension of credit on structure.
Proof by the claimant that labor or materials, or both, was performed or furnished upon or to any structure, or immediately adjacent thereto, or that construction management services were provided in connection with the performance or furnishing of such labor or materials, shall be prima facie evidence that the same was performed or furnished or provided for and on the credit of such structure.
§ 2718 Lien of judgment.
(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.
16 Del. Laws, c. 145, §§ 1, 4; 18 Del. Laws, c. 679; Code 1915, §§ 2843, 2846; 29 Del. Laws, c. 225; 29 Del. Laws, c. 226; Code 1935, §§ 3324, 3327; 25 Del. C. 1953, § 2718; 68 Del. Laws, c. 302, § 2.;
§ 2719 Execution by levari facias; form.
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 Division of proceeds.
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 1 over the other.
§ 2721 Savings provision for 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, or for any construction management services provided in connection with such labor done or materials furnished, 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 Lien where labor is done or materials furnished at instance of lessee or tenant.
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 Rights of owner where lien or judgment is obtained by a subcontractor.
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 therefor 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 Entries in 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 the prothonotary 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 Procedure where claimant institutes personal action and also proceeds under this chapter.
(a) When the claimant proceeds under this chapter for availing himself or herself of that claimant’s lien and institutes any personal action for the same demand or any part thereof or for a demand of which the amount for which the claimant 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 or herself 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 Mechanics’ lien on ship or vessel; time for filing claim; procedure.
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 therefor. 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 Auditors; powers and duties; report to Court; exceptions to report.
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.
16 Del. Laws, c. 145, § 6; Code 1915, § 2848; Code 1935, § 3329; 25 Del. C. 1953, § 2727.;
§ 2728 Judgment on attachment; sale and distribution; suit for deficiency; return of surplus; title under sale.
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 thereupon 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 the defendant’s executors, administrators or assigns. All sales made under this subchapter shall be good against the defendant, the defendant’s executors, administrators or assigns.
§ 2729 Discharge of lien on payment into Court or entry of security.
(a) Cash deposit. — 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. — 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. — 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. — 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.