What Is a Lien Waiver in Construction – Muskegon Construction Attorney Answers

Dec 31, 2023 | Construction Law

Have you encountered the term “lien waiver” but find yourself wondering about its importance? If you’re one of those asking what is a lien waiver in construction and whether it’s necessary or not, then you are in the right place. Let our Muskegon construction attorney explain how lien waivers facilitate transparent and efficient construction payment processes.

Definition of a Lien Waiver

A lien waiver is a legal document commonly used in the construction industry to relinquish or waive the right to file a mechanic’s lien against a property. In the context of construction projects, a mechanic’s lien is a claim that contractors, subcontractors, or suppliers may have on a property to secure payment for the work or materials they provided. The lien waiver essentially acknowledges that the payment has been received and waives the right to file a lien for the specific payment covered.

Let’s say a subcontractor has completed a significant portion of electrical work on a construction project. The general contractor acknowledges the completion of the work and issues a progress payment to the subcontractor. In return, the subcontractor signs a lien waiver, which typically includes details such as:

    • The names of the parties involved 
    • A description of the work or materials provided
    • The amount of payment received
    • A statement that, upon receipt of the specified payment, the subcontractor waives the right to file a lien for that particular portion of the work

Once the general contractor receives the lien waiver and verifies the payment, it becomes a safeguard against potential future liens and other construction legal issues related to the work completed by the subcontractor for that specific payment.

Overview of Muskegon Construction Law

The Michigan Construction Lien Act (MCLA) is the primary legislation governing construction-related matters in Michigan, including lien waivers. It addresses issues such as the creation and enforcement of construction liens, notice requirements, dispute resolution, and protections for various parties involved in construction projects.

Under the MCLA, contractors, subcontractors, suppliers, and laborers who contribute to the improvement of real property have the right to create a mechanic’s lien for the value of their services or materials. Simultaneously, the provisions on lien waivers safeguard property owners from the risks of unexpected liens, providing a stable and predictable environment for construction project completion.

Types of Lien Waivers

There are generally two types of lien waivers: conditional and unconditional. Here’s the difference between the two:

Conditional Lien Waivers

Conditional lien waivers become effective upon the occurrence of specific conditions, typically the actual receipt of payment. The condition may be explicitly stated in the waiver and often includes language such as “upon receipt of payment” or “upon the clearance of funds.” These waivers serve as an acknowledgment that the party receiving payment will release its lien rights once the specified conditions are met.

Conditional lien waivers are often used at different stages of a construction project, especially during progress payments. Contractors and subcontractors may issue conditional waivers to property owners, general contractors, or other parties as a requirement for receiving payment. The use of conditional lien waivers helps ensure that payments are made before relinquishing lien rights and provides a level of protection to the paying party.

Unconditional Lien Waivers

Unconditional lien waivers, on the other hand, take immediate effect, regardless of whether the party providing the waiver has received payment. Unlike conditional waivers, unconditional waivers do not depend on the actual receipt or clearance of funds. Once signed, these waivers represent a full and final relinquishment of the right to file a lien for the specified amount, typically issued when a party is confident in the reliability of the payment or when negotiating progress payments.

Under Michigan law, however, it’s not allowed to require contractors or suppliers to give up their right to a construction lien before the completion of the work. Such lien waivers are considered against the public interest and are invalid, except when payment for the provided labor and materials has actually been made. Even if a lien claimant accepts a promissory note or another form of indebtedness, it does not automatically serve as a lien waiver.

Purpose and Benefits of Lien Waivers

In the construction industry, lien waivers act as contractual instruments that facilitate smooth and transparent transactions between various parties involved in construction projects. Here’s why lien waivers are essential:

Infographic image of benefits of lien waivers

    • Risk Mitigation. The construction industry is inherently complex, and payment disputes can lead to legal challenges that disrupt project timelines and increase costs. Lien waivers provide a legally binding framework that explicitly outlines the conditions and terms under which payment is received, and lien rights are waived, which helps mitigate the risk of legal actions related to unpaid bills or contested payments.
    • Timely Payments. Lien waivers expedite the payment process, as property owners and contractors are more inclined to release funds promptly when they know they are protected from potential liens. In this regard, lien waivers promote a more efficient and predictable flow of payments throughout the construction project.
    • Project Collaboration. When all parties understand and agree to the terms outlined in the lien waivers, it creates a collaborative and trusting project environment. Property owners, contractors, subcontractors, and suppliers are more likely to work together seamlessly when there is confidence in the fairness and transparency of the payment process.

Need Help With Your Lien Waiver?

Seeking guidance from a legal expert in matters related to lien waivers can provide invaluable support and protection for parties involved in construction projects. If you need help with your lien waiver, Bowen Law is here to provide the legal assistance and expertise you require. 

Our seasoned Muskegon construction attorneys are knowledgeable in Michigan construction laws, ensuring your lien waiver is clear and compliant with relevant regulations. In the event of a dispute or uncertainty of the lien waiver conditions, we can offer strategic advice and, if necessary, represent you in legal proceedings. 

We stand ready to assist you in addressing potential challenges, negotiating fair terms, and protecting your interests throughout the construction project. For reliable construction-related legal solutions, call us today at (231) 726-4484 or contact us here.

DISCLAIMER:

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only.

Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.

If you have legal questions, please contact us at: (231) 726-4484

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Disclaimer:

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only.

Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.

If you have legal questions, please contact us at:
(231) 726-4484

Muskegon Business Law Attorneys of David T. Bowen, P.C. pursue cases of Business Law, Real Estate, and Estate Planning in Muskegon Michigan

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