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I signed a final unconditional waiver and now they are ordering more supplies on the job. Do I need to send a new prelim?

CaliforniaPreliminary Notice

I'm a material supplier on a job in California and sent a preliminary notice at the start of the job. I thought the project was completed and signed and final unconditional waiver. Now my customer is stating that the project is not complete and they need to order more materials. Am I still protected? Do I need to file a new preliminary notice?

1 reply

Oct 27, 2017

While it's always a better idea to not provide a final waiver (especially an unconditional final waiver) until your work on the project is completely finished and the payment is in the bank, it may not be the end of the world here.

The final waiver, if the appropriate California waiver form was used, contains the following language:

"This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for all labor and service provided, and equipment and material delivered, to the customer on this job. Rights based upon labor or service provided, or equipment or material delivered, pursuant to a written change order that has been fully executed by the parties prior to the date that this document is signed by the claimant, are waived and released by this document, unless listed as an Exception below. The Claimant has been paid in full."

If the customer needs more material, a change order can be executed, and provided that the change order is executed after the date the waiver was signed, the materials should still be protected by valid lien rights.

An alternative method would be, as you note, to treat this delivery as a new project. If there is a new contract, it may be arguable to treat this as a new project, for which a new preliminary notice would need to be sent, after which the delivery of the materials should be protected.

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