• A claimant may waive lien rights in a contract before performing work, but the waiver must be clear and unequivocal.
• "Paid if Paid": Montana courts have yet to address this issue, but the strongly written statutory language is similar to that in states, such as California, that have found "pay-if-paid" clauses to be unenforceable.
• "Pay when Paid" appears unenforceable Mont. Code Ann. § 28-2-2103 (2) (a): Within 7 days after a contractor receives payment from an owner, the contractor shall pay the subcontractor.
• Pay-when-paid and Paid if Paid clauses in the subcontract or purchase order do not create a condition precedent to payment.

Retainage Provisions

Public

• The maximum rate of retainage is 5 percent if the contractor is performing by the terms
  of the contract. The contractor can withhold no more retainage from subcontractors than is
  withheld from the contractor. MONT. CODE ANN. § 18-2-316.

Private

• Retainage may not exceed 5 percent. A contractor may not withhold a higher percentage
  from its subcontractors than is being withheld from the contractor. Retainage must be released
  upon the final acceptance of each portion of work for which a separate price is stated in the
  contract. MONT. CODE ANN. § 28-2-2110.