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Can a conditional final waiver be provided to our customer after we filed a lien against the project?

CaliforniaLien Waivers

We (the subcontractor) filed a lien against the property. Now our customer wants to pay with a cashier's check and is requesting a conditional final waiver before giving us the check. We have explained to them that the check needs to clear before we start the process to release the lien but they don't seem to understand the process. Do we have to provide them with a conditional even if there is mechanics lien filed already?

1 reply

Aug 20, 2018

First, a conditional waiver isn't required just because it is requested - a claimant can refuse to submit a conditional waiver if they'd like. Of course, if a claimant refuses to provide a waiver, the paying party might refuse to make payment. Exchanging payment for the release of a lien can be a tricky dance - the timing is awkward. As mentioned above, the process to release an already-filed lien will typically entail more than simply exchanging a conditional waiver. Regardless, it's understandable for a lien claimant to be wary of signing a lien waiver before payment is made. However, if a conditional waiver is requested, and if that waiver accurately reflects the payment being exchanged in exchange for the release of the lien, providing a conditional waiver as requested might not be a bad idea to help facilitate payment. As we discuss often on the blog, conditional waivers are only effective upon receipt of the payment being exchanged for the waiver. Thus, nothing is waived if nothing is received. This is especially true in a state like California where conditional lien waivers (and lien waivers in general) are heavily regulated. More on that here: California Lien Waiver Forms & Guide.

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