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Conditional and uncoditional waiver and release

1 month ago

Hello!

We are near to completion of a whole home remodel.
I understand that we will need to sign the CA waiver and release form to protect ourselves from subcontractors demands in case our general contractor did not fulfill some of his obligations.
We have a final bill, but our contractor did not include the retainer sum which we paid him to start the job. He had been challenging to deal with and even dishonest occasionally. What is the proper way to exclude the retainer portion from the final payment when completing the waiver and release?

Managing Partner Gibbs Giden LLP

It sounds like your approach should be securing a Conditional Waiver and Release Upon Final Payment from your contractor (making sure there is a ZERO in the exceptions section), as well as a Contract claim waiver and release. You will also want an Unconditional Waiver and Release Upon Final Payment from each subcontractor or supplier that you received a preliminary notice from. There are additional important considerations, but this is a starting point.

Best,
Chris

(NOTE: The information presented here is general in nature and is not intended nor should be construed as legal advice for any particular case or client. The content contained herein is published online for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel. This posting does not create any attorney-client relationship and is neither intended to constitute an advertisement nor a solicitation).

Disclaimer: NOTE: The information presented here is general in nature and is not intended nor should be construed as legal advice for any particular case or client. The content contained herein is published online for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel. This posting does not create any attorney-client relationship and is neither intended to constitute an advertisement nor a solicitation.
Guest
Anonymous

Thank you so much for your reply, Christopher!
We never had any notices from subcontractors.
In fact, most we’ve never seen because the house is quite far from where we live. We only dealt with our general contractor.
Do we need to collect any additional info about the subcontractors? We do have the names of companies listed on our bills, also the city’s building division required the general contractor to submit the list of his subcontractor before the final inspection.
Going back to the original question, do we just deduct that retainer amount from the final payment or do we attach some kind of explanation?
I was under the impression that getting a Conditional or Unconditional waiver and release from the general contractor would successfully prevent subcontractors from filing a lien on our property. Am I wrong in thinking so?
What are the other considerations you mentioned above?
Sorry, so many questions.
Thank you so much again!

Managing Partner Gibbs Giden LLP

No problem! So it doesn’t matter that you live far away or only deal with your GC. If a sub or supplier can prove that they served a prelim to one of your valid addresses, they may have a lien right. Out of an abundance of caution, I would definitely try to secure unconditional waivers and releases from all of the subcontractors and suppliers listed in your billing information and the GC’s list submitted to the building department. You can try to ask your GC for these and advise the GC that you are ready, willing, and able to release retention once you receive these unconditional waivers from each sub and supplier, as well as the GC’s written guaranty that it will defend and indemnify you from any future lien claims once retention is released.

It is not correct that securing a waiver and release from your GC operates to waive the claims of subs and suppliers.

(NOTE: The information presented here is general in nature and is not intended nor should be construed as legal advice for any particular case or client. The content contained herein is published online for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel. This posting does not create any attorney-client relationship and is neither intended to constitute an advertisement nor a solicitation).

Disclaimer: NOTE: The information presented here is general in nature and is not intended nor should be construed as legal advice for any particular case or client. The content contained herein is published online for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel. This posting does not create any attorney-client relationship and is neither intended to constitute an advertisement nor a solicitation.
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