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Added language to TX partial conditional/unconditional forms

Our customer has added the following language (in CAPS) to the TX partial conditional/unconditional forms. Is it without our right to indicate that the language is outside of the statutory form and not accept? This release covers a progress payment for all labor, services, equipment, or materials furnished to the property or to __________________ (person with whom signer contracted) as indicated in the attached statement(s) or progress payment request(s), except for unpaid retention, pending modifications and changes, or other items furnished FOR WHICH THE UNDERSIGNED HAS NOT RECEIVED PAYMENT, AND CONTRACT RIGHTS, INCLUDING (A) A RIGHT BASED ON RESCISSION, ABANDONMENT OR BREACH OF CONTRACT, AND (B) THE RIGHT TO RECOVER COMPENSATION FOR WORK NOT COMPENSATED BY THE PAYMENT.

1 reply

Mar 20, 2018

You are correct that Texas has specific lien waiver forms set forth by statute. Whether the addition of certain language provides a claimant with the opportunity to refuse the wavier as presented in favor of one that more specifically complies with the statutory form is a different question.

Texas law holds that a lien waiver "is not enforceable and does not create an estoppel or impairment of a lien or payment bond claim unless: (1) the statement is in writing and substantially complies with a form prescribed by Section 53.284 . . ."

The question then becomes whether the additional language is enough to make the waiver not substantially comply with the statutory text.

The text above is a bit confusing, as the intention appears to be to have the waiving party waive rights s/he may have under the contract (through various causes of action). However, the text is added to the wavier as an addendum to the "except for" language outlining the various claims/situations to which the waiver doesn't apply. It is unlikely the party supplying the waiver meant to exclude these other claims specifically, so at the very least, a waiver with this additional language is confusing and ambiguous - which makes it more likely that it is improper.

To the extent the waiver is actually attempting to overreach and get the waiving party to waive addition rights other than the right to lien, it is a waiver that should likely be treated with skepticism.

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