customer thought they where done on job, so we gave them a conditional on final payment. Then they need to continue on job .

Answered 1 month ago

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Matt Viator

Legal Associate Levelset

That's an interesting question. If a separate agreement was entered into in order to perform the additional work, then another preliminary notice might be necessary in order to preserve lien rights - especially if the contract were with a different customer-subcontractor (which does not seem to be the case here). As for additional work provided for the same customer - under ARS § 33-992.01(G), only one preliminary notice is required for all work performed, unless the total value of the work provided or to be provided is more than 20% over the original estimate for work provided which was included in the original preliminary notice.

As far as preserving the right to lien after a conditional final waiver has been submitted, and after the payment identified in that waiver has been made - that might be a tough situation. As indicated by the title, a final conditional waiver waives all lien rights on the project upon receipt of the payment identified in that notice. So, if a final conditional waiver is given, and if payment is received for that waiver, a lien claimant could be left without lien rights for the remainder of their work.

When additional work is required after a final waiver has been given, it might be wise to execute an additional contract and to send a preliminary notice based on that contract. By going about it that way, it'd be easier to ensure that lien rights would be preserved for any additional work performed. Otherwise, a construction business might be performing work without the security of lien rights - though, in some situations, that might be acceptable.

For more information on Arizona notices, waivers, and lien rights, these resources will be valuable:
(1) Arizona Lien and Notice Overviews, FAQs, and Statutes
(2) Arizona Lien Waivers Overview

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