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Should I issue more than one Final Waiver for the same project?

IllinoisLien Waivers

Draw #6 appears to be a final draw with my contract-previous paid-this payment=0 but I know a Change Order is going to be issued for Draw #7 that will increase my contract. Am I okay to issue a Final Waiver for Draw #6 and a second Final waiver for Draw #7 as long as my contract value increases with Draw #7?

1 reply

Oct 31, 2018
While there can be nuance to every situation, the general best-practice use of waivers is that "final" waivers are only used when no more expected payments are to be made, and "partial/progress" waiver are used when additional payments are expected. Because third parties need to be able to rely on lien waivers, what the waiver says is sometimes more important than what has actually happened. While this is most pressing in situations regarding conditional vs. unconditional waivers, it could be applicable for final vs. progress waivers, as well, depending on what the waiver actually says.

Illinois is not one of the states with statutorily mandated waiver forms. Accordingly, an Illinois lien waiver is virtually unrestrained in what it can say. This means it's very important to read the actual text of the waiver to understand what it says and what is being waived.

To the extent the language allows for "exceptions" or contemplates additional work being done pursuant to change orders, it shouldn't make a difference whether the title of the waiver document is a "Final" waiver. However, to the extent that no such language exists and the waiver purports to be a "final final" waiver with no caveats, it would pay to be very careful.
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