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Am I required to sign an unconditional waiver on a project without payment?

MissouriLien Waivers

We have a contractor requiring an unconditional waiver (they call it conditional with a "trigger statement", but the waiver says Unconditional at the top and states payment is received) but we have not been paid on this job. They note that this waiver is signed by all subs on all jobs regardless of situation. The waiver states we as subcontractor have been paid. Their trigger statement is below. Is it legal to require us to sign this without knowing when we will get paid? "The remittance of the Contractor (whether by check payment or virtual card payment), and marked “paid” or otherwise canceled by the bank against which said remittance was drawn, shall constitute conclusive proof that said invoice(s) were paid and that payment thereof was received by Subcontractor and this lien waiver shall become effective automatically and without requirement of any further act, acknowledgment, or receipt on the part of the Subcontractor named herein." Thank you in advance!

2 replies

Nov 23, 2020

Generally, no - there's no legal requirement for providing an unconditional lien waiver before payment is made. Additionally, it doesn't look like Missouri prohibits the waiver of lien rights before payment is receieved. That means a business won't legally be required to unconditionally waive their rights before payment is made, but if they do provide that waiver, lien rights will be waived even though payment wasn't actually received. In other words: It's good to be extremely cautious when providing unconditional waivers in Missouri. For further discussion: Missouri Lien Waivers Guide and FAQs.

Instead of an unconditional waiver, submitting a conditional waiver would likely make much more sense when payment hasn't actually been made. That way, lien rights aren't waived until after payment is made. And, once payment is made, the waiver is completely legally binding - and the party who received the waiver can rest assured that lien rights aren't an issue going forward (at least for that invoice/waiver). Plus, if the customer is hesitant to agree to use conditional waivers, offering to provide an unconditional waiver once payment is received could provide some reassurance.

I think these articles will be useful to you: (1) Do I Have to Sign a Lien Waiver to Get Paid? ; (2) Should You Sign That Lien Waiver?; and (3) Unconditional Lien Waivers vs Conditional Lien Waivers.

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Dec 9, 2020

Absolutely not. Call me if you want more information: 314-276-9991

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