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Are lien waivers in advance of payment enforceable in washington, dc?

Washington DCLien Waivers

We need the landlord to fund the final installment of the tenant improvement allowance but in order to do so, we need to deliver final lien waivers from all contractors. The contractors are willing to deliver final lien waivers in advance of final payment but is that enforceable in Washington, DC?

5 replies

Oct 10, 2019
Washington DC doesn't have any specific statutes or requirements governing lien waivers. The lien waiver process is left to the agreement of the parties. So lien waivers in advance of payment are enforceable in DC. Best practice? Have the contractors execute conditional final lien waivers. These are just as valid and enforceable as traditional lien waivers, but don't become effective until payment is actually made. This is the best route for all parties; the owner gets their lien waivers, and the contractors haven't waived any mechanics lien rights until they get paid. You may find this resource helpful: The Ultimate Guide to Lien Waivers in Construction  
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Oct 10, 2019
same question as before...what about Virginia?
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Oct 10, 2019
Virginia also allows for the execution of lien waivers before payment. However, there are some caveats that are particularly unique. Direct contractors can validly waive their lien rights at any point during the project. As for subcontractors and suppliers, they too can waive lien rights before payment. But, they can't validly waive their rights prior to furnishing any labor, materials, or services. This was the result of a 2015 amendment to the VA mechanics lien laws, to limit the ability to force sub-tier participants into waiving their rights. If you are curious about lien waiver rules in any other state, we have a helpful interactive map that shows a couple of the basic rules for each state. Including which states allow waivers before payment. Just click here: Lien Waiver Map
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Oct 11, 2019
Thank you very much. One more question: In Virginia, are restaurant equipment providers and furniture providers entitled to file mechanics liens? They are technically not "contractors, suppliers or materialmen".
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Oct 11, 2019
Virginia grants mechanics lien rights to all persons performing labor or furnishing materials of the value of $150... for the construction, removal, repair, or improvement of any building or structure. As far as furniture providers are concerned, this doesn't fall within the scope of mechanics lien protection. The courts have even explicitly dealt with this issue regarding furniture supplied to a hotel, stating that there must be a change to the actual building and not merely it's use or function. Equipment providers, on the other hand, fall within a bit of a legal gray area. Depending on the equipment and the extent of installation and incorporation, it may give rise to a lien claim. However, the original intent of the statute is to protect those doing what is considered "traditional construction work." Although it can be argued that such services could potentially fall within the gambit of lien protection, it may still prove challenging to enforce.
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