is it possible to set up progressive waiver througout the project and still maintain some rights if something goes wrong

6 months ago

I invoiced a company for a $2000.00 progress payment for demolition, until the job starts. They say, they have the check ready to mail out but need/want me to sign a final affidavit and waiver form. I dont feel good about this document. Things can get hectic moving forward with a tricky owner
I feel like I should confront the company about this waiver because its titled, “final affidavit and waiver”, it vaguely states the time period, “and through the date there of”, and has misleading context.

Chief Legal Officer Levelset
72 reviews

Lien waivers, despite the fact that they are exchanged all the time on construction projects, and oftentimes are just “rubber-stamped” in order to move payment along, can be tricky and can have significant consequences.

In many cases with respect to unconditional waivers, what a waiver says can be more important than what actually happens. This is because public policy holds that third-parties are generally entitled to rely on what a lien waiver says.

Washington DC does not specify any specific form for lien waivers, so they can say anything the drafting party wants to include. Since there is no standard, lien waivers can include waivers of other rights, clauses attempting to gain leverage for certain parties, or just be unclear.

A good way for parties to avoid many potential issues arising from lien waivers is to provide “conditional waivers” until the money is actually in hand. Conditional waivers are only effective upon a specific condition (payment) being met. Until payment is actually received the waiver is not effective to waive lien rights, but the paying party is protected because as soon as payment is made, the waiver becomes effective. To provide even more peace of mind for the paying party, the conditional waiver can be followed up with an unconditional waiver when payment has been received.

Any time a waiver has “Final” or makes references to payment already being made, or the waiver otherwise being unconditional it’s worth exercising caution.

Fair Washington DC lien waivers can be found here. 

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