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How do I create a Massachusetts Partial Unconditional Lien Waiver

8 months ago

We are a GC with an owner who is requesting Partial Conditional AND Partial Unconditional Lien Waivers for each payment app. Massachusetts has a statutory lien waiver form “Partial Waiver and Subordination of Lien”. But the language of the form, particularly the most important part “upon receipt of”, reads like a conditional lien waiver. I don’t understand how we are supposed to make a Massachusetts partial unconditional lien waiver.

Founding Partner Goldman Law Group
5 reviews

Call me.  You can’t make a contractor waive his right to record a lien in MA.

 

Sincerely,


 Andrea

Goldman Law Group
60 Austin Street, Suite 210                                                
Newton, MA 02460                                                                

 T: 617-953-3760

 F: 617-321-4191  

agoldman@goldmanlg.com

http://www.GoldmanLG.com

“Massachusetts Builders Blog” http://www.buildingconfidence-llc.blogspot.com

“Home Contractor vs. Homeowner Blog”  http://www.andreagoldmanlaw.blogspot.com

Senior Legal Associate Levelset
441 reviews

Andrea is right – a contractor cannot be forced into waiving their lien rights in Massachusetts. But, partial waivers and subordination of liens can be given as set out by § 32(4) of the Massachusetts mechanics lien statute.

Further, as you mentioned above, Massachusetts is one of the few states with a statutory mechanics lien waiver form. And, the form provided by statute must be followed very strictly. While most states with statutory waivers will state that the waiver form must be “substantially” in the form provided by statute, Massachusetts is a bit more strict. § 32(4) states that there may be “no material deviation” from the form provided by statute. So, any change made to the form could end up invalidating it – particularly a serious, intentional change to how the document operates.

How to discuss Massachusetts lien waivers with a property owner

It can be hard for an owner to fully understand how mechanics lien waivers operate since they’re typically not completely plugged into the construction industry. This is especially true in states with statutory mechanics lien waivers.

It might be helpful to discuss matters with the owner and to inform them of how Massachusetts lien waivers operate. Owners are understandably cautious, and unfortunately, they often expect both conditional and unconditional waivers. While there are typically 4 separate types of lien waivers, making it relatively easy to provide different waivers for different points of the project, this isn’t always true in states where statutory waivers are present (like Massachusetts).

Further, it may also be worth discussing the fact that if payment is made in full, lien rights shouldn’t be all that much of an issue. After all, lien rights are only available for payment owed but unpaid. So, at least between an owner and their direct contractor, there should generally be little fear of the potential for the contractor filing a mechanics lien claim once they’ve been paid in full. If the contractor isn’t owed payment, they wouldn’t be entitled to file a lien anyway.

For more discussion on Massachusetts’ lien waiver rules: Massachusetts Lien Waivers Guide and FAQs.

Disclaimer: The information presented here is not legal advice and should not be construed as such. Rather, this content is provided for informational purposes. Do not act on this information as if it is advice. Further, this post does not create any attorney-client relationship. If you do need legal advice, seek the help of a local attorney.
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