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Can I Require That My Contractor Provide Me With an Unconditional Waiver and Release?

ArizonaLien Waivers

We've had a private construction contract going with a contractor for over 13 months in Arizona to construct a spa/pool and backyard BBQ/kitchen as well as install hardscape tile and artificial turf. This is a significant investment (over $110K) for us, and the contractor essentially refuses to complete the project citing COVID-19 at every turn. Through February 24, 2021 we'd payed 90% of the total contract cost, but received approximately 70%-75% completion. Between October 2020 and February 2021 we've filed two complaints against them with the AZ ROC, and in retaliation they recently served us three preliminary 20 days notices in less than a week claiming we owed them money for work completed. The only outstanding monies owed to them were for the last interim/progress payment that would be due at the beginning of pool/spa interior prep...that hasn't begun nor have they delivered any materials to our property or told us that they are beginning to work that project milestone. However, to show good faith we paid off the final $10K hoping they'd actually start putting some effort into finishing other uncompleted milestones. After they received the final payment we requested an unconditional waiver and release pursuant to ARS 33-992.01 and 33-1008. Since we didn't have a payment bond (entire project has been paid in cash), can we require the contractor give us an unconditional waiver and release? We say yes...they say no.

1 reply

Mar 7, 2021
A preliminary 20-day notice that complies with the statute must contain a notice to the property owner that tells the owner that the owner is entitled to require the contractor to furnish and unconditional waiver and release pursuant to ARS 33-1008(D). So, yes, they are obligated to give you an unconditional waiver and release. But there isn't much you can do to force the contractor to do so. It is highly unlikely that it is worth filing a lawsuit to compel them to sign a waiver. I would not overreact to receiving a preliminary 20-day notice. That notice only preserves the right to record a mechanic's lien for any work done 20 days before the notice is mailed or later. It has no legal effect on the title or property at all. Only a mechanic's lien has a legal effect on the property. If you have any further questions please feel free to contact me.
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