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Are there any legal ramifications in issuing a “partial waiver and release of lien” for zero dollars if the first progress payment has been made and the 2nd progress payment is not yet due?

2 years ago

The company I sell for supplies floor and roof trusses to builders in South Florida. (2 progress payments)
We shipped floor trusses to Buildings 4 and 5. We received payment and issued partial waivers for those specific amounts. In the next pay cycle we shipped building 5 roof trusses but not Building 4. The builder is holding our check for Building 5 until the receives a partial waiver on Building 4 for zero dollars reflecting a through date of the check date.

Chief Legal Officer Levelset

Florida is a unique state with respect to lien waivers – while a statutory form is not required (parties can agree to use any waiver form they wish) no potential claimant may be forced to use a form other than the waiver form provided by statute. The effectiveness or ramifications of the document will depend on the form of the waiver itself.

If the statutory waiver form is being used, the text is as follows:

WAIVER AND RELEASE OF LIEN UPON PROGRESS PAYMENT
The undersigned lienor, in consideration of the sum of $____, hereby waives and releases its lien and right to claim a lien for labor, services, or materials furnished through (insert date) to (insert the name of your customer) on the job of (insert the name of the owner) to the following property:
(description of property)

This waiver and release does not cover any retention or labor, services, or materials furnished after the date specified.
DATED on ___, (year) . (Lienor)

By: __________

Note that the construction of the waiver states that lien rights through a certain date have been waived for the consideration of a particular sum. Florida does not specifically deny the ability to waive lien rights without consideration, provided the labor or materials have been provided to the project. Accordingly, a $0 waiver with a through date can, if in the form above, waive lien rights for the work performed despite not being paid.

If the waiver is in a different form (lacking a through date), it may be possible to provide a $0 waiver that in actuality doesn’t waive anything, since the value of the right being “waived” is $0. However, waiving lien rights prior to payment (and not conditioned upon payment) is a serious decision, and is almost never the best practice.

Since Florida doesn’t necessarily mandate the forms to be used, it may be agreeable to provide a “conditional waiver” on progress payment that is conditioned upon the actual payment. That avoids the messy problems set forth above, and protects both the claimant’s right to get paid (until the payment is made) and the paying party’s desire to limit lien exposure.

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