JUSTICE McLAREN delivered the opinion of the court:

Third-party plaintiff, Lipowski & Associates, Inc. (Lipowski),appeals from the dismissal of its action to foreclose on amechanic's lien and to recover for breach of contract. On appeal,Lipowski argues that its failure to submit a sworn contractor'sstatement does not preclude it from pursuing a breach of contractaction. We reverse and remand.

This litigation arises out of the construction of improvementsto the home of Casimir J. Komperda and Dawn M. Komperda. TheKomperdas hired Lipowski to provide architectural and constructionmanagement services on the project. Plaintiff, Northwest MillworkCompany (Northwest), furnished doors, trim, and hardware for theproject. On June 8, 2001, Northwest sued the Komperdas; AndrewLipowski, who was Lipowski's principal; and St. Paul Federal Bankfor Savings/Charter One Bank (St. Paul). The complaint allegedthat on May 21, 1999, Northwest and Andrew Lipowski agreed thatNorthwest would furnish lumber materials for the project. Northwest was to receive $8,096.22 for its services. Northwestcompleted its work on June 17, 1999. It sought to foreclose on itsmechanic's lien, damages for breach of contract, and damages undersection 28 of the Mechanics Lien Act (Act) (770 ILCS 60/28 (West2000)). The contract claim was directed against Andrew Lipowskionly, and the remaining claims were directed against alldefendants.

Lipowski filed a third-party claim against the Komperdas, St.Paul, and unknown owners and lien claimants. Count I of Lipowski'sthird-party complaint sought to foreclose on its mechanic's lien,and count II sought damages for breach of contract. Lipowskialleged that it and the Komperdas entered into an oral agreement onor about September 26, 1999. For the architectural services,Lipowski's compensation would equal 8% of the construction costs,and, for the construction management services, Lipowski'scompensation would equal 12% of the construction costs. On July13, 1999, Lipowski completed its obligations under the contract. At that time, $48,425.61 became due. Despite Lipowski's repeatedrequests, the Komperdas never paid the balance. On September 23,1999, Lipowski served a notice of a mechanic's lien claim and onOctober 21, 1999, filed a mechanic's lien claim with the LakeCounty recorder of deeds.

Lipowski attached to its complaint a billing statement datedSeptember 17, 1999. According to the statement, the baseconstruction cost was $77,165.76. The construction management feewas $9,259.85, and the architectural fee was $6,173.30. Lipowskicharged an additional architectural fee of $7,426.70. Thus, thetotal bill was $100,025.61. The statement reflects that theKomperdas paid $50,000 to Lipowski and $1,600 to a window supplier,thus reducing the total amount due to $48,425.61.

Relying on section 2--619(a)(9) of the Code of Civil Procedure(Code) (735 ILCS 5/2--619(a)(9) (West 2000)), the Komperdas movedto dismiss the third-party claim. Citing this court's decisions inMalesa v. Royal Harbour Management Corp., 187 Ill. App. 3d 655(1989), and Ambrose v. Biggs, 156 Ill. App. 3d 515 (1987), theKomperdas argued that, because Lipowski failed to give them a sworncontractor's statement pursuant to section 5 of the Act (770 ILCS60/5 (West 2000)), Lipowski was barred from maintaining a breach ofcontract action. They argued further that, because the right toproceed on a mechanic's lien depends upon the ability to recoverfor a breach of a valid contract with the property owner, under resjudicata principles, the mechanic's lien claim likewise must fail. The Komperdas attached their affidavits in which they averred thatLipowski never gave them a sworn statement. Also, the Komperdasmoved to dismiss Northwest's claims against them.

Lipowski responded that it was not a general contractor butinstead an architect and construction manager. Therefore, it wasnot required to submit a sworn statement under section 5.

On September 18, 2001, the trial court dismissed withprejudice Lipowski's third-party claim. Also, the court dismissed with prejudice Northwest's mechanic's lien claim as to alldefendants and dismissed with prejudice the section 28 damagesclaim as to the Komperdas only.

On September 20, 2001, Lipowski moved to reconsider. It urgedthe trial court to follow National Wrecking Co. v. Midwest TerminalCorp., 234 Ill. App. 3d 750 (1992), and Prior v. First NationalBank & Trust Co. of Mount Vernon, 231 Ill. App. 3d 331 (1992),which rejected Malesa and Ambrose. On November 6, 2001, the trialcourt denied the motion to reconsider and found no just reason todelay the enforcement or appeal of the judgment. See 155 Ill. 2dR. 304(a). Lipowski timely appealed.

A motion to dismiss pursuant to section 2--619 of the Codeadmits the legal sufficiency of the complaint and all well-pleadedfacts and the inferences therefrom but asserts an affirmativematter that avoids or defeats the claim. Avakian v. Chulengarian,328 Ill. App. 3d 147, 152 (2002). We must ascertain whether agenuine issue of material fact precluded the dismissal or, absentsuch an issue of fact, whether the dismissal was proper as a matterof law. Carroll v. Paddock, 199 Ill. 2d 16, 22 (2002). We reviewthe trial court's ruling de novo. Carroll, 199 Ill. 2d at 22.

The affirmative matter the Komperdas have raised is thatLipowski failed to tender them a contractor's affidavit undersection 5 of the Act. The purpose of the Act is to permit a lienupon premises where a benefit has been received by the owner and the value or condition of the property has been increased orimproved by the furnishing of labor and materials. R.W. DuntemanCo. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 164 (1998). Becausethe rights under the Act are in derogation of the common law, thesteps necessary to invoke those rights must be strictly construed. Westcon/Dillingham Microtunneling v. Walsh Construction Co. ofIllinois, 319 Ill. App. 3d 870, 877 (2001). Once a plaintiff hascomplied with the requirements, however, the Act should beliberally construed to accomplish its remedial purpose. Westcon/Dillingham, 319 Ill. App. 3d at 877.

Section 5 of the Act provides:

"It shall be the duty of the contractor to give theowner, and the duty of the owner to require of the contractor,before the owner or his agent, architect, or superintendentshall pay or cause to be paid to the contractor or to hisorder any moneys or other consideration due or to become dueto the contractor, or make or cause to be made to thecontractor any advancement of any moneys or any otherconsideration, a statement in writing, under oath or verifiedby affidavit, of the names and addresses of all partiesfurnishing materials and labor and of the amounts due or tobecome due to each." 770 ILCS 60/5 (West 2000).

The Act becomes a part of every construction contract betweenan owner and a contractor. Abbott Electrical Construction Co. v.Ladin, 144 Ill. App. 3d 974, 977 (1986). The purpose of the swornstatement is to protect owners from the potential claims ofsubcontractors. Malesa, 187 Ill. App. 3d at 659. Section 5requires contractors to provide information that is within theirknowledge but that may not be known to the owner. Malesa, 187 Ill.App. 3d at 659. If the owner pays the contractor before receivingthe sworn statement, the owner may be compelled to paysubcontractors even if he or she has paid the contractor in full. 770 ILCS 60/32 (West 2000); Malesa, 187 Ill. App. 3d at 660.

In Abbott Electrical, 144 Ill. App. 3d at 979, this court heldthat a contractor's failure to comply with section 5 will defeatits mechanic's lien claim only if the property owner has requestedthe sworn statement. Ambrose involved a contractor's breach ofcontract claim against the owner. The Ambrose court explained thatthe apparent rationale for the holding in Abbott Electrical wasthat, because all subcontractors with a mechanic's lien on theproperty are necessary parties to the foreclosure action, theirinterests will be protected regardless of whether the contractorprovides the sworn statement. By contrast, subcontractors are notnecessary parties to a contract claim between an owner and acontractor. As a result, in a contract claim, an owner is notprotected from potential subcontractors' claims unless thecontractor provides a proper statement. Considering thesubstantial risk to the owner, the Ambrose court held that acontractor who fails to provide the sworn statement cannot recoverfor breach of contract. Ambrose, 156 Ill. App. 3d at 518.

Malesa followed Ambrose. The contractor in Malesa arguedthat, because the owner has a concurrent duty under section 5 torequest a sworn statement, a contractor may maintain a breach ofcontract action where the owner fails to request the statement. The Malesa court rejected the argument. The court explained thatthe owner's duty is to refrain from paying the contractor until theowner receives the sworn statement. This is a duty owed to thesubcontractors, and, under section 32 of the Act, a breach of theduty can lead to liability to the subcontractors. The courtobserved that section 5 does not explicitly require the owner torequest the statement and does not condition the contractor's dutyto provide the statement on receiving such a request. Malesa, 187Ill. App. 3d at 600.

In National Wrecking, the Appellate Court, First District,declined to follow Ambrose and Malesa. First, the court observedthat Ambrose and Malesa conflicted with its decision in Hall v.Harris, 242 Ill. App. 315 (1926). National Wrecking, 234 Ill. App.3d at 763. Second, the court reasoned that nothing in section 5indicates that the legislature intended to bar contract actionswhere the contractor fails to comply with the statute. NationalWrecking, 234 Ill. App. 3d at 763-64.

The Fifth District also has disagreed with Malesa in itsdecision in Prior. Prior involved only a mechanic's lien claim. Holding that the contractor's failure to provide a sworn statementdid not bar the claim, the court observed that the doctrine ofstrict construction never was meant to be a pitfall to the unwaryand that owners should not be able to rely on a technicality todefeat an otherwise valid lien. Prior, 231 Ill. App. 3d at 333. Moreover, the court concluded that, because the owners in the casebefore it never requested a sworn statement, the duty to provideone never arose. Prior, 231 Ill. App. 3d at 333. According to thecourt, an owner has more than just the duty to refrain from payingthe contractor until he receives the statement. The owners inPrior knowingly allowed the work to be done and thereby recognizeda benefit to their property. Prior, 231 Ill. App. 3d at 334.

Lipowski urges us to adopt National Wrecking and Prior. Also,Lipowski insists that the Ambrose court's concern about the risk tothe owner simply is not present here. Initially, the Komperdasrespond that Lipowski has waived these arguments because it did notproperly raise them below. They stress that Lipowski did not raiseNational Wrecking and Prior until it moved to reconsider, nevercited Abbott Electrical, and never attempted to distinguishAmbrose.

Lipowski has not waived the arguments it raises on appeal. Inits motion to reconsider, Lipowski argued generally that itsfailure to provide a sworn statement did not preclude a breach ofcontract action. Where, as here, Lipowski afforded the trial courtan opportunity to consider the issue now raised on appeal,application of the waiver rule would not further the reason for therule. See People v. McKay, 282 Ill. App. 3d 108, 111 (1996)(waiver rule preserves judicial resources by encouraging litigantsto bring alleged errors to trial court's attention). Moreover,waiver operates as a limitation on the parties, not the courts. Mellon v. Coffelt, 313 Ill. App. 3d 619, 626 (2000). A reviewingcourt may relax the waiver rule where it is necessary to achieve ajust result and maintain a uniform body of precedent. Mellon, 313Ill. App. 3d at 626. This appeal involves an issue that has led to disagreement among some appellate districts and therefore requiresfurther analysis.

We conclude that Ambrose and Malesa are distinguishable andtherefore do not control here. The Ambrose court noted that theowners' "refusal to make the final payment in the absence of acontractor's statement was justified in order to protect againstpotential subcontractors' lien claims." Ambrose, 156 Ill. App. 3dat 518. Here, the facts developed thus far do not demonstrate thatthe Komperdas are subject to the risk of subcontractors' lienclaims. Section 24 of the Act provides:

"Sub-contractors *** may at any time after making his orher contract with the contractor, and shall within 90 daysafter the completion thereof *** cause a written notice of hisor her claim and the amount due or to become due thereunder,to be sent *** to or personally served on the owner of recordor his agent or architect ***." 770 ILCS 60/24 (West 2000).

Serving the 90-day notice is a condition precedent to amechanic's lien claim. Caruso v. Kafka, 265 Ill. App. 3d 310, 313(1994). Here, Lipowski sued long after the 90-day period hadexpired, and the Komperdas have not claimed any actual prejudice orexposure to potential subcontractors' claims. By the time Lipowskisued the Komperdas, the Komperdas were aware of Northwest's lienclaim. Under these circumstances, the reasoning of Prior applies. By allowing the work to be done, the Komperdas recognized a benefitto their property. Unless the Komperdas can demonstrate prejudice,it would be inequitable to allow them to rely solely on atechnicality to defeat what otherwise may be a valid contractclaim.

Moreover, in Ambrose, the contractor abandoned the work afterthe owners refused to make the final payment. Likewise, in Malesa,the project never was completed. Here, Lipowski alleged that itcompleted its obligations under the contract. It is significantthat Ambrose and the case on which the Ambrose court relied,Deerfield Electric Co. v. Herbert W. Jaeger & Associates, Inc., 74Ill. App. 3d 380 (1979), involved an owner's failure to makeinstallment payments while the work was still in progress. Bothdecisions addressed the owners' need to protect themselves frompotential subcontractors' lien claims. Ambrose, 156 Ill. App. 3dat 518; Deerfield Electric, 74 Ill. App. 3d at 386. Where there isno longer a potential for such claims, the concerns expressed inAmbrose and Malesa are not present, and it would be inequitable tohold that the failure to present a sworn statement permanently barsa breach of contract action.

Under the facts developed so far, it is impossible to say asa matter of law that Lipowski's failure to provide a sworncontractor's statement prevents it from pursuing a breach ofcontract claim. Also, the record contains no evidence that theKomperdas requested a sworn statement. Under Abbot Electrical, thefailure to provide the statement does not defeat Lipowski'smechanic's lien claim. Accordingly, we conclude that the trialcourt erred in dismissing Lipowski's third-party claim.

We reverse the judgment of the circuit court of Lake Countyand remand the cause for further proceedings on Lipowski's third-party complaint.

Reversed and remanded.

HUTCHINSON, P.J., and CALLUM, J., concur.