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are preliminary releases and conditional waivers needed for change orders?

MichiganLien WaiversPreliminary Notice

A change order we submitted was approved after we started work on the initial contract.

1 reply

Aug 15, 2018
To be sure I cover all of the appropriate bases - I'll assume you mean preliminary notices and conditional waivers (of course, "releases" and "waivers" are often used interchangeably in practice, so I apologize if that's what you meant). Anyway, preliminary notices are typically only sent at the start of the project and amended or revised notice is generally not required. Change orders, when validly executed, become part of the party's contract. When preliminary notice has been sent, that notice covers all of the work authorized and performed by the party sending notice. Regarding lien waivers - whether a lien waiver is "required" is really up to the party requesting lien waivers. Unless requested by a customer, a claimant doesn't have to send a conditional waiver for change orders. If a change order has been performed, a claimant could certainly issue a partial conditional lien waiver for that work in anticipation of payment for that work. Note, of course, that submitting a final waiver before work has concluded or sending an unconditional waiver before payment is made can be risky. We discuss that idea, and more, in this article: The Ultimate Guide to Lien Waivers. Anyway, if a claimant's customer requests a waiver, it's a good idea to pay attention to the details of the waiver. But if the conditional lien waiver does not waive more than a claimant is comfortable with, then exchanging that waiver for payment should not be much of an issue. Ultimately, the decision of whether or not to issue a conditional waiver will depend on the preferences of the parties involved.
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