Can we require a contractor, subcontractor, or material supplier to waive construction-lien or payment-bond rights before they are paid?
No. § 28-2-723, MCA is a flat, unqualified void rule: “A construction contract may not contain provisions requiring a contractor, subcontractor, or material supplier to waive the right to a construction lien or a right to a claim against a payment bond before the contractor, subcontractor, or material supplier has been paid for the labor, materials, or both labor and materials, furnished.” The statute names the trigger for validity as PAYMENT, not contract signing or project completion: an advance waiver required as a condition of getting the job, before the work it covers is paid for, is exactly what the section prohibits. This sits alongside Montana's construction-lien chapter, which separately requires a lien claimant to give timely NOTICE of the right to claim a lien (generally within 20 days of first furnishing services or materials, or 45 days where a regulated lender is disbursing the project's funds), as a precondition to claiming the lien at all (§ 71-3-531). The notice is two steps, not one, and each carries its own bar. It must be “sent to the contracting owner by certified mail or delivered personally to the owner”, and “[a] person may not claim a construction lien unless the person has complied with this subsection” (§ 71-3-531(5)). A copy must also be filed with the clerk and recorder of the county where the property sits, in the form § 71-3-532 requires, “not ... later than 5 business days after the date on which the notice of the right to claim a lien is given to the contracting owner” (§ 71-3-531(6)(a)); the filed notice lapses after a year unless continued, and where notice is required at all “a person may not claim a construction lien pursuant to this part unless there is an unexpired notice of right to claim a construction lien or an unexpired continuation notice filed with the clerk and recorder at the time that the person files the lien” (§ 71-3-531(6)(e)).
The trap
§ 28-2-723 was read in full and, unlike New Jersey's comparable lien-waiver statute, it names no partial exception for a waiver given specifically for work still to be provided, and no separate provision conditioning effectiveness on actual receipt of payment: Montana's rule is written as an outright bar on the REQUIREMENT to waive before payment, not a conditional-effectiveness rule. But that reading has not been tested in a Montana appellate opinion: the section is mentioned by no published Montana decision at any level, so no case confirms how a Montana court would treat a waiver signed before payment but expressed to take effect only once payment clears, or what remedy follows a violation (voidness of the waiver clause alone, unenforceability of the whole contract, or something else). Do not assume this section reaches every construction-adjacent waiver: it is worded around “construction contract” provisions specifically, and this rule did not independently verify its interaction with § 71-3-531's separate lien-rights NOTICE requirement, which has its own, unrelated exceptions (original contractors dealing directly with the owner, wage earners, and large or commercial projects are excused from giving that notice at all).
8 authorities
- statuteMont. Code Ann. § 28-2-723enactment date not established
The words that state the rule
A construction contract may not contain provisions requiring a contractor, subcontractor, or material supplier to waive the right to a construction lien or a right to a claim against a payment bond before the contractor, subcontractor, or material supplier has been paid for the labor, materials, or both labor and materials, furnished by the contractor, subcontractor, or material supplier.
- statuteMont. Code Ann. § 71-3-531enactment date not established
The words that state the rule
A person who may claim a construction lien pursuant to this part shall give notice of the right to claim a lien to the contracting owner in order to claim a lien.
- statuteMont. Code Ann. § 71-3-531enactment date not established
The words that state the rule
Except as provided in subsection (4), the notice may not be given later than 20 days after the date on which the services or materials are first furnished to the contracting owner. If notice is not given within this period, a lien is enforceable only for the services or materials furnished within the 20-day period before the date on which notice is given.
- statuteMont. Code Ann. § 71-3-531enactment date not established
The words that state the rule
When payment for services or materials furnished pursuant to a real estate improvement contract, excluding a contract on an owner-occupied residence, is made by or on behalf of the contracting owner from funds provided by a regulated lender and secured by an interest, lien, mortgage, or encumbrance for the purpose of paying the particular real estate improvement being liened, the notice required by this section may not be given later than 45 days after the date on which the services or materials are first furnished to the contracting owner.
- statuteMont. Code Ann. § 71-3-531enactment date not established
The words that state the rule
The following are not required to give notice of the right to claim a lien as required by this section: (a) an original contractor who furnishes services or materials directly to the owner at the owner's request; (b) a wage earner or laborer who performs personal labor services for a person furnishing any service or material pursuant to a real estate improvement contract; (c) a person who furnishes services or materials pursuant to a real estate improvement contract that relates to a dwelling for five or more families; and (d) a person who furnishes services or materials pursuant to a real estate improvement contract that relates to an improvement that is partly or wholly commercial in character.
- statuteMont. Code Ann. § 71-3-531enactment date not established
The words that state the rule
The notice of the right to claim a lien must be sent to the contracting owner by certified mail or delivered personally to the owner. Notice by certified mail is effective on the date on which the notice is mailed. If the notice is delivered personally to the contracting owner, written acknowledgment of receipt must be obtained from the contracting owner. A person may not claim a construction lien unless the person has complied with this subsection.
- statuteMont. Code Ann. § 71-3-531enactment date not established
The words that state the rule
A person who may claim a lien shall also file with the clerk and recorder of the county in which the improved real estate is located a copy of the notice of the right to claim a lien, in the form required by 71-3-532 . This copy may not be filed later than 5 business days after the date on which the notice of the right to claim a lien is given to the contracting owner.
- statuteMont. Code Ann. § 71-3-531enactment date not established
The words that state the rule
If a notice of the right to claim a lien is required under this section, a person may not claim a construction lien pursuant to this part unless there is an unexpired notice of right to claim a construction lien or an unexpired continuation notice filed with the clerk and recorder at the time that the person files the lien.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.