I issued an unconditional final to a customer and now the same customer wants to buy more material on the same job. How do I keep my right to the material sold after the unconditional final was issued?
Dec 18, 2018
That's a great question. First, let's look at the text of the California Final Unconditional Lien Waiver. Found at § 8138 of the California Civil Code, this waiver states that it waives and releases lien rights for "all labor and service provided, and equipment and material delivered, to the customer on this job." Thus, based on "delivered" - past tense - this part of the waiver seems to merely waive rights to work performed prior to the signing of the waiver. The next sentence continues: "Rights based upon labor or service provided, or equipment or material delivered, pursuant to a written change order that has been fully executed by the parties prior to the date that this document is signed by the claimant, are waived and released by this document, unless listed as an Exception below." This section states that change orders executed prior to the waiver will be waived - but is silent as to anything executed after the document. While not necessarily indicative that later-earned lien rights are intact, the fact that they're not mentioned might serve as evidence that later-earned lien rights will be unaffected. And finally - since the waiver is dated - it should be evident that lien rights for any work provided after the waiver are not being waived by issuing this waiver. Based on the above, it seems pretty apparent that a Final Unconditional Lien Waiver should not waive lien rights for work that was not even contracted for at the time of the waiver. Even still, in order to best preserve the ability to later file a lien, it might be wise to treat the new work as a separate job by having a customer execute a new written agreement for work that will be provided, and to send notice based on the new work. A new agreement and a new preliminary notice would serve as that much more evidence of the intention to provide materials under a new agreement and the intention to retain the right to lien for that new work. For more on California lien waivers, the following resource should be helpful: California Lien Waiver Forms & Guide.