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Which waiver, Conditional Final or Conditional Progress? – Final Progress Billing 100%, 5% Retainage

1 week ago

I am a prime contractor on a commercial project. What dollar amount and which conditional waiver do I request when the subcontractor sends in their billing for 100% complete? In our state of Minnesota, 5% retention is withheld from progress payments.

The through date of the final billing (progress billing 2) is September 30, and is approved for 100% complete.

Revised Contract Amount is $36,869.00
Previously Approved Amount is $13,127.50
Complete through September 30, Progress Billing 2: 100%.
Current payment due is $21,898.05
Balance to finish (including 5% retainage) is $1,843.45

Senior Legal Associate Levelset

Minnesota does not require any specific statutory form for mechanics lien waivers. That means members of the Minnesota construction industry are able to craft mechanics lien waivers to suit their particular needs (as long as both parties to the waiver agree on the form, of course).

While I’m not able to provide legal advice on how to fill out forms or which forms to use, I can provide some helpful background information here.

Minnesota lien waivers

With that being said – “progress” or “partial” mechanics lien waivers are generally most appropriate when there’s an expected future payment. And, typically, a final lien waiver is reserved for the last and final payment on the project.

In either event, note that many mechanics lien waivers will include an “Exceptions” section where a contractor and/or their sub can identify amounts for which lien rights should not be waived. And, by identifying there that retainage is outstanding and not waived, a contractor and their sub can confidently and fairly execute lien waivers.

For a free, downloadable template of Minnesota lien waivers which also contain “Exceptions” sections, here’s a valuable resource: Minnesota Lien Waivers Guide and FAQs. Scroll down about halfway for downloadable forms!

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