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Should I sign a Unconditional Waiver And Release on progress payment form if I have not been paid in full

CaliforniaLien Waivers

A company subcontracted my company to complete a job which was finished. The company has not paid me in full. I explained to them that I would proceed with legal action if I was not paid the balance. They agreed to deposit the balance into my account. Instead I received this form in the mail. I did not sign it until the money is in my account.

1 reply

Jan 17, 2019
That's a good question, and unfortunately, many subcontractors face similar problems. I'll also add that you're smart to be skeptical of signing an unconditional lien waiver before actually receiving payment! Looking to the California lien statute should help here. § 8138 of the California Civil Code dictates the language of final unconditional waivers in the state. At the top of that waiver, in all caps, reads "This document is enforceable against you if you sign it, even if you have not been paid. If you have not been paid, use a conditional waiver and release form." (emphasis added). Clearly, when payment is still owed, providing an unconditional waiver form is likely not a good idea. Instead, offering to submit a conditional waiver - such as the Conditional Waiver and Release on Final Payment set out by § 8136 - is typically a better idea. This waiver will not waive lien rights until payment has been made - but once payment does go through, it's just as binding as any other waiver would be. Offering to submit a conditional final waiver is always a much safer option - plus, a claimant can still submit a final unconditional waiver after payment is safely in their bank account. Offering to provide a conditional first then an unconditional after payment is firmly in hand might be a more appealing compromise for a party making payment (though a follow-up unconditional might be a bit redundant). For more on the subject, zlien has some great resources: (1) California Lien Waiver FAQs, and (2) California Lien Waiver Forms & Guide .
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