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What amount should be listed as Amount of Check on a California Conditional Waiver on Progress Payment?

Anonymous Contractor

I receive several California Conditional Waiver and Release on Progress Payment forms and they all seem to be filled out differently. For example, we are currently receiving waivers for May progress payments. The waiver lists the "Through Date" as May 31, 2019. The sub-contractor's invoices for May 2019 total $20,000. There are also previous invoices that have not been paid that total $10,000. Should the "Amount of Check" be $20,000 (for May only) or $30,000 (to include all outstanding invoices) even if the previous unpaid invoices are listed under EXCEPTIONS?

1 reply

Matt Viator

Construction Lawyer

Levelset Admin at Levelset

| 1,000 reviews

Jun 18, 2019

That's a great question, and Levelset has an helpful guide to that document, which you can find here: Guide To California’s Conditional Lien Waiver — Progress Payment [Free Download]. Of course, that article is written to clarify how to fill out the waiver itself - rather than how to respond to waivers that have been submitted. With that in mind, let's look at some particulars for parties releasing checks upon receipt of a CA Conditional Progress Lien Waiver.

The "Amount of Check" portion of the California Conditional Waiver and Release on Progress Payment form is there to indicate the amount of the check that will be exchanged for the waiver. So, generally, the check given for that waiver should match the "Amount of Check" portion of the waiver. When there are amounts in the "exceptions" section of a waiver - lien rights for those amounts will continue to exist beyond the receipt of payment for the waiver. So, where there's a large number featured in the "exceptions" section of a waiver, it might be wise to submit that payment separately than other payments and to obtain a progress lien waiver for that check, as well. Alternatively, requesting a lien waiver that sets out all outstanding balances then paying a check that equals the amounts on that lien waiver might be an option too. Either way - if the Amount of Check section(s) on the waiver(s) match up to the amounts that are given, lien rights should be properly waived.

Finally, there's one more thing to consider. Mechanics lien rights are only available for amounts that are owed and unpaid. So, if payment has actually been made, a contractor can be certain that the recipient of the check can't file a lien for the amounts they've actually been paid. Naturally, it's a good idea to keep record of payments - like a receipt, bank draft, or other evidence that payment was actually made. But, at the end of the day, there's no better proof that lien rights no longer exist than a waiver in hand that also matches the proof that payment has been made.

For more information on California lien waivers, these resources will be valuable:
(1) California Lien Waivers Overview
(2) California Lien Waiver Forms & Guide – All You Need to Know
(3) California Lien Waivers | Common Mistakes & How to Avoid Them

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