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What is the significance of lien waiver

TexasLien Waivers

We are a small general contractor in Houston,Texas. Per industry standard, we make our sub contractors submit a conditional partial lien waiver with their monthly pay application. We have been doing this for years now. It is lot of work to print, mark up, track, and execute lien waivers. It is also burdensome on the sub contractors especially small ones who have to run around town to find a notary to get the document notarized. In our past experience, the lien filed on the property is usually from a tier sub or a vendor that provided materials for the project.So, getting a lien waiver from your main subcontractor does not really prevent the lien on the property. It just protects lien from your main subcontractor for the amount listed. Example: Lets say we have a sub contract for $100,000 with Sub contractor "A". Sub Contractor "B" is a tier-sub (Subcontractor A's subcontractor) and Vendor "C" provided material for this project. At the end of month 1, Sub contractor A submitted pay application for $10,000 and a partial and conditional lien waiver for $10,000. He is only waiving his right to file a lien for that first $10,000. He can still file a lien for rest of the amount.Even that A turns in a lien waiver but A fails to pay B and/or C, B or C can file a lien for that $10,000. So, the lien waiver actually covers a small fraction of the lien risk. Lets say, A turns in a lien waiver and receives payment but still decides to lien the project. We have a lien waiver on hand but it has not been filed on the court house. The court will record the lien on the property. We will need to get lawyer involved to have him drop the lien on the project as we have a notarized and documented lien waiver on hand. The lawyer will have to work with him and show him that he signed a waiver of lien and show him proof of payment and have him drop the lien. But same could be accomplished with just the proof of payment for $10,000 and a proof of cashed check. So, how much help are we really getting from the lien waiver? If we do not get a lien waiver from A and he decides to file a lien for that 1st $10,000.00 we have proof of payment our check stub or a cashed check from the bank for $10,000. In order to be 100% covered, we actually need to get a lien waiver from A, B and C and all of A's employees, B's employees and anyone else involved in the project. And perhaps a second tier and a third tier sub that is involved in the project which will be mammoth of a task. So the big question is how much are gaining from chasing after lien waivers from A? Looking forward to comments and discussions.

1 reply

Aug 17, 2020
Lien waivers function much as you set forth in your question - they are a construction company's industry-specific receipt of payment - and they are like a miniature contract between the parties solely related to payment receipt and the ability or inability to file a valid lien against the property. Since the lien waiver is between the parties exchanging the waiver for payment, you are correct that a waiver between a direct contractor and a 1st-tier sub provides little protection with respect to lien risk from parties on the chain. This is why in many circumstances, a direct contractor will require the sub to bundle lien waivers from the additional sub-tier parties with whom the sub contracted in the pay app prior to approved payment. It is also possible, with sufficient project visibility (through receipt and tracking of preliminary notices, requests for information down-the-chain, or the use of technology-driven assistances, to request and obtain lien waivers from all project participants directly. With respect to a lien claimed by a sub who has already provided a sufficient lien waiver for the amount, there are a few points that one into play. First, the mere fact that a lien waiver has been provided makes it generally unlikely that the sub will file a lien, nobody wants to file a lien just for kicks and liens are reserved for nonpayment situations. If the sub has been paid, there is no need to file an a lien, and in fact, it would be counter productive. In the off-chance that such a lien is filed, however, the lien waiver provides relatively conclusive proof that the lien in invalid, and can be expeditiously removed. Further, filing a lien after providing an unconditional lien waiver is likely a fraudulent or frivolous filing for which there are potential penalties.s
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