We have been asked to revise a conditional progress release to remove the exceptions that were on the first one. Is it appropriate and are we obligated to do this?

5 months ago

A conditional progress release was issued with exceptions as the previous months invoices were not paid. They have since been paid and the customer is asking us to send a revised conditional progress release without the exceptions.

Senior Legal Associate Levelset

Great question! It’s completely normal for a customer to want an updated lien waiver whenever additional payment has been made. This is especially true where a prior waiver has identified previous unpaid invoices, but then those invoices are paid. After all, without an updated lien waiver, it might appear to some higher-tiered party that the customer is not up to date with their payments.

Still, it’s natural to be cautious when additional waivers are requested. But, as long as an updated lien waiver doesn’t waive any additional rights than what’s intended, and as long as the through date is accurate (which would likely remain the same if an old waiver is just being updated), then there should be little harm in updating a lien waiver to reflect that previously excepted amounts have now been paid.

As for whether a claimant is obligated to send an updated waiver – that may ultimately be a function of the relationship between the parties. Generally, an obligation to provide a waiver is simply a function of a waiver being required before payment is released. So, a claimant is typically “required” to provide a waiver because their customer won’t release payment unless one is provided. Meaning, if a customer requires that one be given, then that waiver may, effectively, be required since they’re the ones who will be releasing payment. But, regardless, of what’s required, it’s probably worth considering what effect refusing to issue a waiver might have on the relationship with a customer, particularly if the waiver request is a reasonable one.

For more information on California waivers and how they may affect payment rights, these resources should be valuable:
(1) Guide To California’s Conditional Lien Waiver — Progress Payment [Free Download]
(2) California Lien Waivers Overview

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