On a standard Chicago Title form partial waiver, how does the “paid through this date” clause on the top half of the waiver affect the lien-ability of retention?

2 months ago

We have an owner that is requiring the date on the top half of the waiver be today’s date, even though the work was completed in August 31, 2018, which is how the waiver is currently dated.

Senior Legal Associate Levelset

Good question. Generally, when a through date is included in a lien waiver, that serves as a marker that all lien rights prior to that date will be waived – regardless of whether those rights pertain to retainage or some other withholding. So, unless the waiver explicitly states that retainage amounts shouldn’t be included in what’s being waived, or unless the waiver somehow identifies what rights shouldn’t be waived in some other way, that waiver will waive all lien rights up to and until the through date featured on the waiver.

Of course, keep in mind that Illinois is not a state that mandates a particular lien waiver form. So, if a claimant is unsure about using a particular form – such as the Chicago Title waiver form – that claimant may be able to use something like a conditional waiver in order to better protect themselves. Though, at least as I understand it, it’s common for Illinois customers to demand the Chicago Title form be used.

Ultimately, though: unless a lien waiver explicitly excludes retainage amounts, or amounts unpaid in general, then waiving all lien rights up to a certain date could be risky business.

For further discussion on Illinois lien waivers, this is a great resource: Illinois Lien Waivers Overview.

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