Example, our pay application is for 12,000.00 but there are change orders for back charges in the amount of $18,000.00, thus creating a ($6,000.00) owed to the GC
Sep 10, 2018
That's an interesting situation. Whether or not a particular lien waiver is required will be up to the parties on the particular project. That is, a higher-tiered party may require that some lien waiver be given, and a lower tiered party may or may not decide to provide them that waiver. What happens as a result of either decision is entirely up to the parties at hand. While the California Civil Code provides forms for lien waivers, it does not dictate that they must be exchanged. Of course, it's worth noting that if no payment is owed, providing a "progress" or "partial" lien waiver (be it a conditional one or an unconditional one) shouldn't really be all that risky since there is no amount that could be liened. Of course, if some payment is due and owing and some lien right may exist for work performed and unpaid, it would be much more important to carefully scrutinize whether or not to provide a lien waiver. Finally - recall that unless all work has been performed, a final lien waiver would probably not be appropriate, and that unless work is completed and paid for, a final unconditional waiver would probably not be appropriate.