I am a general contractor and hired a sub contractor that would not complete the job.
It depends on the circumstances. You would be better served by extracting an unconditional waiver and release of liens. You would be better served with the following wording: "Full & Final Payment for all work on Project ___." You could place those words both in the memo area on the front of the check and above the endorsement area on the back side of the check.
Good luck.
While that language may provide you a defense to a lien that is filed, it does not automatically negate a lien that is filed. Errant and fraudulent liens are filed all of the time, and absent a formal statutroy lien waiver or release, you would have to file a lawsuit to get the lien removed by a judge. A check evidencing payment is just that, evidence.
Now that said, if you intend to issue paymnet, the language to be included on the check itself that you and Mr. Erikson have discussed is certainly a good idea.
Feel free to reach out to my office direclty if you would prefer to discuss this issue in greater detail as well as other potential options.
Very best,
Ben
281-762-1377
ben@houseperron.com
Hello,
No. Under UCC 3-311, the "final payment" marker means the person giving payment is discharged from any further payment so long as they are giving the payment in good faith as full satisfaction of a claim, the amount is unliquidated (not pre-agreed) or subject to a bona fide dispute, and the person who was paid actually received payment.
If the person who receives the payment repays it in 90 days, or no payment was ever received, then the "final payment" holds no water.
With that being said, if they cash the check and do not repay the full amount of the check within 90 days, the final payment beings binding. However, there is still an issue as to whether they meant final payment as to all claims or final payment as to the work done. Because, technically, a lien is still for unpaid work done.
As you can see it is weird. Best to keep "Final Payment" out of the simplicity that is a lien waiver.
E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com