Final waiver of lien

[Winning DUH]

This post is about getting the check.

A few years ago when it was busy-busy the GC?s I dealt with would have me bring a waiver of lean to their office. Then I would present waivers of lien from the material men and myself. Then we would exchange wavers for the check. Be it partial or final. GC got the waivers and I walked out the door with a check. Done and Done.

Work slowed down and I started to deal with new contractors. Some of the new GC?s wanted a waiver before they gave me the check. I was told by the GC that it was easier for them because the GC would get waivers from all subs and present all the waivers to the ?project owner? , then the GC would get a check, then the subs would get paid. All fine and good, I get it. GC was to get a check and I was to get paid out in a week or so, no problem.

Now enter the unscrupulous General Contractor. Wants the waiver before the check. Also wants a low number on the next job BEFORE I see the check. Also wants to beat me over the head for this and that, and one more trip, bla bla bla. Wants can lights at his house.
This GC is telling me that it is normal to give the final waiver before I get the check BECAUSE I then have 120 days to file a lien if I do not get paid.
120 days is a long time and I feel like a boo calling ?are the checks ready? Are the checks ready? NO? Ok, I?ll call back next week?..? 120 days??????? So what on the 119th day I lien him??

I asked two lawyers:
1st lawyer told me the above statement is true. I should give the GC the final waver BEFORE I get the final payment. Then wait up to 120 days to get paid.
2nd lawyer said no way!! No wavers without checks.

I asked an owner of an established HVAC company and he tells me that he faxes a bill to the GC and files a lien the same day. ?And if the GC don?t like I never do work for him again!!? If I was to file a lien I do not think I would be invited to bid ever again?.

Is all this getting paid/waivers on a case by case bases? Exactly how does everybody else do it?

 

[kwired]

Most of work I have done where I run into lein waivers is lenders wanting the waiver before releasing funds. They always send a waiver that has wording that it too general and I refuse to sign it. I tell them by signing it I am releasing my right to ask for future funds from the project that is not completed yet. I also tell them I will sign one at the completion of the project.

If it would be worded to indicate what specifically the waiver covers - like my invoice on mm/dd/yyyy that would be different. But they always send the same copy that they send to everyone and if you read it you really don't know how an attorney or judge may decide to interpret it if it should come to that.

 

[Sierrasparky]

I hear this stuff all the time.
If you provide a un-conditional waver of lein rights and you have not been paid , YOU have no rights >>>

On the other hand if you sign a conditional waver " conditional on the sum of xxx.xx being paid for work completed through xx-dd-yy then you still have rights.

If you waive your rights you cannot lein. Anyone who claims otherwise they are wrong. You are the professional here, the Contractor, the one with sophistication, you will loose. .

 

[satcom]

Many years ago I made the mistake of giving the waver up before getting the check and the GC was a dead beat that thought all the money he got was his and never paid any of the subs and never intended to, your story was funny because he had the nerve to ask me to do another freebie and also wanted work at his house, and that never happened because when I gave up the waver without getting the money, I lost any hope of ever getting a check, just move on and learn how tough it is to run a business

 

[growler]

Now enter the unscrupulous General Contractor. Wants the waiver before the check. Also wants a low number on the next job BEFORE I see the check. Also wants to beat me over the head for this and that, and one more trip, bla bla bla. Wants can lights at his house.

Is all this getting paid/waivers on a case by case bases? Exactly how does everybody else do it?

First off it wouldn't bother me one bit to do grievous bodily harm to one of the crooks but unfortunately there are laws against that sort of thing.

How and when you are to be paid should be covered in the contract and this is decided at the start of the job and not at the end of the job.

This is just my opinion but I think there is only one thing worse than not working and that is working and not getting paid. In a bad economy it is more important to make sure that you are paid than even in a good economy.

A lot of these micky mouse type GCs are going to go bankrupt and if they are holding your money then you are not going to get anything.

 

[zbang]

The very idea of waiving the lien before getting the check boggles my mind, the whole purpose of the lien is to get the payment! Ask the GC- if they borrowed money to buy a car, would the finance company give them title before the loan was paid? I don't think so.

My consulting contract says something like "Contractor maintains a security interest in all work product and materials until final payment is received."

 

[Sierrasparky]

The very idea of waiving the lien before getting the check boggles my mind, the whole purpose of the lien is to get the payment! Ask the GC- if they borrowed money to buy a car, would the finance company give them title before the loan was paid? I don't think so.

My consulting contract says something like "Contractor maintains a security interest in all work product and materials until final payment is received."

Don't be surprised GC's , homeowners, Corperations , Lenders all try this sort of thing. They are not stupid nor are they making a mistake. They do this with full knowledge and decite. When confronted with this and you tell them " I will provide a conditional waiver and it will become final when x.xx amount is paid. The answer is always " You must use our form, that is the only one we accept. If you want to get paid then I suggest you sign."
All i know is that when you threaten a actual lein and legal action they will back down most of the time. I personally cannot stand the audacity to attempt the fraud in the first place.

 

[kwired]

Don't be surprised GC's , homeowners, Corperations , Lenders all try this sort of thing. They are not stupid nor are they making a mistake. They do this with full knowledge and decite. When confronted with this and you tell them " I will provide a conditional waiver and it will become final when x.xx amount is paid. The answer is always " You must use our form, that is the only one we accept. If you want to get paid then I suggest you sign."
All i know is that when you threaten a actual lein and legal action they will back down most of the time. I personally cannot stand the audacity to attempt the fraud in the first place.

If it is a partial or progress payment you can always counter that with no pay no more progress. Especially if the payment was scheduled in any contract you have.

 

[Sierrasparky]

If it is a partial or progress payment you can always counter that with no pay no more progress. Especially if the payment was scheduled in any contract you have.

Of course.... However the folks I reffering to demand an "Un-conditional" waver of lein. They have the nerve and if It were up to me they would be stoned in the public square!

 

[CopperTone]

never sign the lien waiver anyone sends you.

The following is advice from my attorney - (maybe you should ask your attoney) - draw up your own conditional lien waiver. make sure it states specifically how much you are gettting paid and how much you are waiving lien rights to. write in there that the conditional lien waiver shall act as an unconditional lien waiver for the specified amount upon the payment clearing through your bank account.

This satisfies the lien waiver and protects your rights to lien in case the check bounces.

When we use this method - we usually send an unconditional lien waiver about 2 weeks after the check was deposited into our account and clears.

Never give up your lien rights until you have gotten paid. why would you and why should you?

We once received a lien waiver form from a GC that said - "we agree to give up our rights to lien even if we don't get paid" they wanted it signed before they would send the check - we laughed and said - no no no - we are not doing that - we issued them our conditional form and it was acceptable to all.

 

[satcom]

never sign the lien waiver anyone sends you.

The following is advice from my attorney - (maybe you should ask your attoney) - draw up your own conditional lien waiver. make sure it states specifically how much you are gettting paid and how much you are waiving lien rights to. write in there that the conditional lien waiver shall act as an unconditional lien waiver for the specified amount upon the payment clearing through your bank account.

This satisfies the lien waiver and protects your rights to lien in case the check bounces.

When we use this method - we usually send an unconditional lien waiver about 2 weeks after the check was deposited into our account and clears.

Never give up your lien rights until you have gotten paid. why would you and why should you?

We once received a lien waiver form from a GC that said - "we agree to give up our rights to lien even if we don't get paid" they wanted it signed before they would send the check - we laughed and said - no no no - we are not doing that - we issued them our conditional form and it was acceptable to all.

The whole idea of a lien is to secure payment, once you hand it over without getting your payment first, you gave away your secured payment, when the GC din't pay then you get an attorney and take action with the lien and demand payment from the property owner, you may not get payment right away, but you can sure tie up the property until it;s settled