Certain construction documents may need to be notarized, depending on the type of document and the state where the project is located. As far as lien waivers, the vast majority of states don’t require notarization. Florida, in particular, has some unique laws concerning lien waivers – and Florida statute doesn’t require lien waivers be notarized, but that doesn’t mean a lien waiver in Florida might still need notarization to be valid.
Why notarize lien waivers?
Although many in the construction industry think notarizing every document is best practices, in reality, sometimes notarization can actually affect the validity of the document, especially lien waivers. Lien waivers don’t necessarily need to be notarized. They are only sent to the other party, in return for payment, they aren’t filed for record with the court or records office.
Given how often lien waivers are exchanged on construction projects, personally, it seems like an overly burdensome extra step. However, there are occasions where a notarized waiver is incredibly valuable, particularly on unconditional final payment waivers. But successful construction companies are successful because they have effectively minimized the amount of risk on every project. Having lien waivers notarized is just another step towards minimizing risk.
Is notarization required for Florida lien waivers?
The short answer is no.. and possibly yes, Florida is a little more complicated than that. Florida is one of the 12 states that provide statutory lien waiver forms. We use the term “provide” specifically because of how Florida statutes deal with lien waivers.
Unlike the other 11 states, Florida provides statutory lien waivers, but they aren’t necessarily required. Which, in turn, means that notarization could be required depending on the type of lien waiver form being used.
Statutory lien waiver forms
FL. Stat. §713.20(4) states that the waiver or release may be in substantially the same form. Meaning that the statutory forms provided, are simply a safer option for lower-tiered project participants to level the playing field. These waiver forms do not require the potential lien claimant to have their signature notarized on lien waivers.
When using the statutory forms, notarizing the form may or may not invalidate it. As the statute states, the waiver may be in substantially the same form. The question would turn on whether the courts would consider this a material deviation. If the lien waiver contains the same wording, but merely adds a notary block and stamp; a good argument could be made that the waiver is still in substantially the same form.
Contractual lien waivers
Florida statute. §713.20(8) states that a “lien waiver that is not substantially similar to the forms in subsection (4) and (5) is enforceable in accordance with the terms of the lien waiver.” So, it stands to reason that if both parties agree to a different lien waiver form, then its validity will be determined according to its terms. These “contractual lien waivers” are fairly common. Therefore, as long as both parties agree to them in advance they will be valid. And, if the agreed-upon form requires notarization, then notarization may be required, after all.
For a deep dive on Florida lien waivers:
There’s no real answer to whether a Florida lien waiver needs to be notarized. Since parties are free to agree upon a different form if they so choose; this could potentially require notarization. On the other hand, if using the statutory forms, notarizing a Florida lien waiver may not actually have any impact on its validity. Most likely not, but is it worth the risk, or the hassle?