Notarizing construction documents is considered, in some circles, a good practice to ensure that the document is accurate and enforceable. This may be the case in many circumstances. However, when it comes to lien waivers, in particular, it may make matters worse. Only a handful of states require lien waivers to be notarized. In California, this not only is this not required but could also potentially invalidate the lien waiver. Don’t make mistakes with your lien waivers that can cost your business millions like Zachry Construction.
Requirements for California lien waivers
California lien laws, at least in our experience, are some of the most straightforward and practical lien laws in the country. Especially when it comes to lien waivers. In fact, California is one of the 12 states that provide statutory lien waivers.
Are California lien waivers required to be notarized?
No, there is nothing in the California law that suggests that lien waivers must be notarized in order to be deemed valid and enforceable. Lien waivers in California are regulated by the CA Civil Code §8132-8138. This section states that “a waiver and release shall be null, void and otherwise unenforceable unless it is in substantially the following form.”
This is in reference to the proceeding four types of lien waivers that the California legislature has provided. None of which require notarization.
Will a notary stamp invalidate a California lien waiver?
California is particularly strict concerning the regulation of lien waiver and release forms. The statute repeatedly states that the waivers must be substantially in the same form. This language hints that there may be some leeway into structuring a lien waiver. So would adding a notary block and stamp substantially alter the lien waiver? Maybe, maybe not.
Generally speaking, in California, any impulse to make additions or modifications to the lien waiver should be checked. Alterations could come with significant risk. Even the addition of one word can be risky. The statutory forms are incredibly straightforward. The question construction businesses should be asking themselves is: Do the perceived benefits of notarizing the lien waiver outweigh the risk of the waiver being declared invalid? Probably not.
For a deep dive on California lien waivers:
Why notarize construction documents?
Notarizing documents is a way to verify the legitimacy of the document. Especially documents that will eventually be filed in some capacity – either with the court or a county recorder’s office. Which is why it’s odd that many construction professionals want their lien waivers notarized. Lien waivers aren’t filed, they’re sent between parties as an exchange for payment. Also, if operating in one of the states, like California, this can potentially invalidate the entire waiver form and result in delayed payments.
Given that the California statutory lien waivers are drafted to be comprehensive and fair for everyone involved, there’s no reason to tempt fate. Having a lien waiver notarized, although seemingly harmless, isn’t worth the hassle or the risk. It’s best to exchange California lien waivers exactly as they are.