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What is the difference between a conditional and unconditional Waiver and release Form?

California
Anonymous Contractor

I just started with a construction company and am trying to get familiar with Levelset as well. So I thought this would be a perfect opportunity to familiarize myself with Levelset and also ask for a professional answer to this question to better understand the two releases. Thank you!

2 replies

Levelset Admin at Levelset
| 335 reviews
Jun 14, 2021

The distinction between the two is an important one to understand. 

An unconditional waiver is one that is effective upon execution, i.e. when the waiver is signed. If asked to execute an unconditional waiver it's important to ensure that payment has actually been received; not just a check in hand, but money deposited in your account. That's because when an unconditional waiver is signed, it is deemed an acknowledgement of receipt of payment in the amount stated on the waiver. Use these types of waivers with caution.

On the other hand, conditional waivers are the safer of the two options. They are just as effective at waiving lien rights as an unconditional waiver, with one key difference; they will not be valid or enforceable unless and until payment is received. Essentially, the waiver is conditioned on payment being made in order to be enforceable. If a conditional waiver is signed and sent over to the party, your lien rights won't be affected until the amount listed has been paid. These conditional waivers can even be sent along with an invoice or pay application to help speed up the payment process.

Note: in California (and 11 other states) there are specific statutory lien waiver forms that must be used to be valid. This helps simplify the process and ensures that there's no other additional language included that may affect other rights beyond lien rights. 

Given the importance of these documents, we have a ton of resources on the subject. Here's a few articles that may prove useful:

NOTE. The information presented here is for informational purposes only. It is not legal advice and should not be construed nor relied upon as such.
Furthermore, this posting does not create an attorney-client relationship. If you need legal advice, seek the counsel of a licensed, local attorney.See More...
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The difference between the 2 forms is easy to remember once you understand the difference. Both the conditional and unconditional waiver and release forms release a contractor or supplier’s mechanic’s lien, stop payment notice, and bond claim rights. The only difference is WHEN the release takes place. A Conditional form releases those rights once you receive your payment AND when the check clears your bank. That way you don’t have to worry if the check bounces or if the owner or general contractor stops payment on the check. The Unconditional form releases those rights immediately. So you’re out of luck if the check bounces or the GC stops payment on the check. I’m happy to answer any questions you may have about this.
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