Is the up-front mechanics-lien waiver in our Maine subcontract enforceable?
Nothing located in Maine law voids an advance lien waiver, and the whole mechanics-lien chapter was read section by section to say so: 10 M.R.S. §§ 3201 and 3251 to 3269, twenty sections, contain no anti-waiver provision and never use the word "waiver" at all. Maine's lien itself comes from § 3251, which gives a person who performs labour or furnishes labour or materials a lien "by virtue of a contract with or by consent of the owner ... on the land on which it stands and on any interest the owner has in the same, to secure payment thereof, with costs". What actually kills a Maine subcontractor's lien is not a waiver statute but three things in the chapter itself. First, deadlines: under § 3253 the lien "is dissolved unless the claimant, within 90 days after ceasing to labor, furnish materials or perform services" both records a sworn statement in the registry and mails a copy to the owner, and under § 3255(1) the lien must be enforced by an action filed "within 120 days after the last of the labor or services are performed". Second, a ceiling: where the claimant had no contract with the owner, § 3255(3) says the lien "may only be enforced against the property affected to the extent of the balance due to the person with whom the owner has directly contracted", so a subcontractor's lien is capped by what the owner still owes the general contractor, however large the subcontractor's own claim. Third, the owner's notice: under § 3252, where the work was not furnished under a contract with the owner, the owner "may prevent a lien under section 3251 for labor, materials or services not then performed or furnished, by giving written notice" that the owner will not be responsible. Waivers themselves are treated as ordinary commercial instruments and routinely enforced: in John W. Goodwin, Inc. v. Fox a subcontractor "provided lien waivers as it received payments" and signed one "indicating to Campbell and Fox that it had been paid in full for all work billed through that date", and in Jim's Plumbing & Heating, Inc. v. Home Loan Investment Bank the Law Court said a construction lender "could and should have required Bedford Falls to obtain lien waivers from all subcontractors prior to the disbursements".
The trap
Maine differs here from the states whose lien-waiver rules people carry across. Several states void or restrict a waiver given in advance of payment; Maine's lien chapter has no such provision anywhere in its twenty sections, so a Maine subcontractor who signs one is not protected by a statute that does not exist here. The out-of-state provisions are deliberately not cited, because the authority quoted below is Maine authority. Two things do protect the subcontractor, and neither is a waiver rule: the prompt-payment chapter's subcontractor payment and attorney-fee terms apply "[n]otwithstanding any contrary agreement" (10 M.R.S. §§ 1114(3), 1118(4)), and § 3252's notice route reaches only work "not then performed or furnished", so it cannot retroactively defeat a lien for work already done. The bigger trap is on the other side of the ledger, and it has nothing to do with waivers: § 3255(3)'s balance-due ceiling means a subcontractor who never contracted with the owner can win on the lien and still recover nothing if the owner has already paid the general contractor, and the defence is available only "with respect to sums paid by the owner to the person with whom the owner has directly contracted where payment was made prior to commencement of an action" or prior to the statutory written notice, so the notice is the step that stops the clock. The 90-day recording deadline in § 3253 does not apply "when the labor, materials or services are furnished by a contract with the owner of the property affected", which is why a general contractor and a subcontractor are on different timetables. Maine's prompt-payment chapter also preserves the payer's own leverage, which matters when a lien waiver is being demanded as the price of a payment that is itself being withheld: “Nothing in this chapter prevents an owner, contractor or subcontractor from withholding payment in whole or in part under a construction contract in an amount equalling the value of any good faith claims against an invoicing contractor, subcontractor or material supplier, including claims arising from unsatisfactory job progress, defective construction or materials, disputed work or 3rd-party claims.” The withholding has to be good faith and measured by the value of the claim, but within that the chapter takes nothing away.
12 authorities
- statute10 M.R.S. § 3251enactment date not established
The words that state the rule
by virtue of a contract with or by consent of the owner, has a lien thereon and on the land on which it stands and on any interest the owner has in the same, to secure payment thereof, with costs.
- statute10 M.R.S. § 3252enactment date not established
The words that state the rule
If the labor, materials or services were not furnished by a contract with the owner of the property affected, the owner may prevent a lien under section 3251 for labor, materials or services not then performed or furnished, by giving written notice to the person performing or furnishing the labor, materials or services that the owner will not be responsible for the performing or furnishing of the labor, materials or services.
- statute10 M.R.S. § 3253enactment date not established
The words that state the rule
The lien under section 3252 is dissolved unless the claimant, within 90 days after ceasing to labor, furnish materials or perform services: A. Files in the office of the register of deeds in the county or registry district in which the building, wharf or pier is situated a true statement of the amount due the claimant, with all just credits given, together with a description of the property intended to be covered by the lien sufficiently accurate to identify it and the names of the owners, if known. The statement must be subscribed and sworn to by the person claiming the lien, or by someone in the claimant's behalf, and recorded in a book kept for that purpose by the register of deeds for the county or registry district, who is entitled to the same fees as for recording mortgages; and [PL 2005, c. 287, §1 (NEW).] B. Provides a copy of the statement under paragraph A to the owner or owners by ordinary mail. For purposes of this paragraph, a post office certificate of mailing the notice to the owner is conclusive proof of receipt by the owner.
- statute10 M.R.S. § 3253enactment date not established
The words that state the rule
This section does not apply when the labor, materials or services are furnished by a contract with the owner of the property affected.
- statute10 M.R.S. § 3255enactment date not established
The words that state the rule
The liens mentioned in sections 3251 to 3254 may be preserved and enforced by action against the debtor and owner of the property affected and all other parties interested therein, filed with the Superior Court or District Court clerk in the county or division where the house, building or appurtenances, wharf, pier or building thereon on which a lien is claimed is situated within 120 days after the last of the labor or services are performed or labor, materials or services are so furnished, except as provided in section 3256 .
- statute10 M.R.S. § 3255enactment date not established
The words that state the rule
If the labor, materials or services were not performed or furnished by a contract with the owner of the property affected, the lien described in this chapter may only be enforced against the property affected to the extent of the balance due to the person with whom the owner has directly contracted to perform or furnish the labor, materials and services on which that lien claim is based. The defense established by this subsection shall only be available with respect to sums paid by the owner to the person with whom the owner has directly contracted where payment was made prior to commencement of an action to enforce such lien by the person performing or furnishing labor, materials or services without a contract with the owner or a written notice from the person performing or furnishing labor, materials or services without a contract with the owner which sets forth a description of the property sufficiently accurate to identify
- case2012 ME 124Jim's Plumbing & Heating, Inc. v. Home Loan Investment BankMe.decided 2012read it at the source ↗
The words that state the rule
In order to protect its mortgages’ *425 priorities, the Bank could and should have required Bedford Falls to obtain lien waivers from all subcontractors prior to the disbursements and should have tailored its disbursements to those waivers. The Bank failed to take these protective steps
The words that state the rule
Campbell paid Goodwin during the course of construction, and Goodwin provided lien waivers as it received payments. On December 12, 1990, Goodwin signed a lien waiver indicating to Campbell and Fox that it had been paid in full for all work billed through that date.
The words that state the rule
Consequently, the court did not commit clear error when it found that the retainage was the balance due Campbell from Fox and that Goodwin could enforce its lien against that sum. The entry is: Judgment affirmed.
- statute10 M.R.S. § 1114enactment date not established
The words that state the rule
Notwithstanding any contrary agreement, when a subcontractor or material supplier has performed in accordance with the provisions of a contract, a contractor shall pay to the subcontractor or material supplier, and each subcontractor shall in turn pay to its subcontractors or material suppliers, the full or proportional amount received for each subcontractor's work and materials based on work completed or service provided under the subcontract, 7 days after receipt of each progress or final payment or 7 days after receipt of the subcontractor's or material supplier's invoice, whichever is later.
- statute10 M.R.S. § 1118enactment date not established
The words that state the rule
Notwithstanding any contrary agreement, the substantially prevailing party in any proceeding to recover any payment within the scope of this chapter must be awarded reasonable attorney's fees in an amount to be determined by the court or arbitrator, together with expenses.
- statute10 M.R.S. § 1118enactment date not established
The words that state the rule
Nothing in this chapter prevents an owner, contractor or subcontractor from withholding payment in whole or in part under a construction contract in an amount equalling the value of any good faith claims against an invoicing contractor, subcontractor or material supplier, including claims arising from unsatisfactory job progress, defective construction or materials, disputed work or 3rd-party claims.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.