We are working on a Municipal job and the GC has asked us to sign a Conditional waiver on our pay application for retainage . If we sign that would we still be able to file a bond claim for the retainage?

5 months ago

We are the Painting Subcontractor all work is done we have done punch list, and turned over spare parts. we have been paid every other billing and have now requested retainage and they are asking for a conditional waiver.

Senior Legal Associate Levelset

Great question. When a conditional waiver is utilized, that waiver doesn’t actually waive any rights until the payment set out under the waiver is received. So, if a conditional waiver for retainage is exchanged, and if that waiver is tied directly to the payment of retainage, then rights to recover retainage payments aren’t waived until the retainage payment is received.

For a little more background on lien waivers and Texas’ retainage rules, here are some great resources:
(1) Unconditional Lien Waivers vs Conditional Lien Waivers
(2) Texas Lien Waiver Overview
(3) Should You Sign That Lien Waiver? The Details Are Important.
(4) Texas Retainage Overview

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