I'm a GC working nationwide on commercial projects. I'd like to know if I have to request both kinds of lien waivers in any states, or if I can use my discretion as to what waivers I require, so long as I exchange statutorily valid forms.
Dec 14, 2018
That's a fair question. Ultimately, which lien waivers will be required on a project is typically up to the highest tiered parties to the project that are requiring them. Meaning, while a number of states mandate that certain statutory lien waivers be used - these states don't mandate that waivers must actually be used. Rather, they mandate that if waivers are used, the statutory waiver forms must be the ones used. Within that framework, owners, developers, lenders, and any other top-of-chain parties will typically have discretion as to what waivers they'll require. Thus, what's "required" will be up to the party to whom the waivers will ultimately submitted. Often, these parties will require both conditional waivers and unconditional waivers throughout the life of the project despite the fact that conditional waivers become unconditional upon the receipt of the payment specified in the waiver.