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Conditional Waiver help

FloridaLien Waivers

We supply materials to customers and jobsites. My customer has paid us $122,500 but didn't pay a couple of small invoices totaling $5,909.99. We want to give them a conditional progress payment release with the outstanding amount of $5,909.99 due. The form I populated shows Maker of check xxxxxxx Amount of check $5,909.99 Check Payable to xxxxxxxxx We are not swapping this release for the check at this time but want to give them the release so they can get their money, we are waiting their payment to be processed and mailed. Are we covered if we do not require this check as a swap for this document?

2 replies

Oct 18, 2021

While I'm not able to advise you on how to fill out your waivers, I can provide some more general information and useful resources to help you avoid making lien waiver mistakes. 

First, I'll note that Levelset has excellent resources on how to use Florida lien waivers, such as these two: (1) Florida Lien Waiver Forms & Guide – All You Need to Know; and (2) Guide to Florida’s Lien Waiver – Progress Payment. The first article should help you determine what FL waiver best fits your situation, while the second article provides great insight into how to use the FL progress waiver forms. 

In any event: Note that it's exceedingly common for construction businesses to provide a conditional lien waiver before being paid for the work identified in that waiver. After all, that's what conditional waivers are designed for - to preemptively waive lien rights, but only if the payment actually gets made. For more background on the difference between conditional & unconditional waivers: Unconditional Lien Waivers vs Conditional Lien Waivers.

Lastly, here's an article that discusses common mistakes with FL waivers: Florida Lien Waivers | Common Mistakes & How to Avoid Them.

Oct 20, 2021
You should give them a conditional waiver and release which states that the release will become valid upon receipt and clearance of the funds. You will give them an unconditional release once the funds have cleared.

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