Lien waiver

(n) Nothing herein limits or alters the paying party’s right to withhold or not approve payment on grounds set forth in the party’s contract or the grounds set forth in Section 8-29-4 or otherwise for work not properly performed or payment not earned; rather, this section is intended only to establish a maximum amount of retainage, establish the timing for release of retainage, and provide for the payment of interest for improperly held retainage. Also, the paying party may condition payment on the receipt of a full release of any lien of the contractor, subcontractor, or sub-subcontractor for the amount of work being paid.

(o) All loans and loan proceeds related to a construction project, and the disbursement and use thereof, are governed solely by the terms of the documents evidencing and securing the loan, and contractors, subcontractors, and sub-subcontractors have no lien or rights in any such loan, loan proceeds, or the disbursement or use thereof.

A party may not waive the right to receive interest before a payment is due under a contract subject to this section. A party may waive the interest due on any late payment on or after the date the payment is due under Section 8-29-3.

This chapter does not apply to the following: (1) Residential homebuilders. (2) Improvements to real property intended for residential purposes which consist of 16 or fewer residential units. (3) Contracts, subcontracts, or sub-subcontracts in the amount of ten thousand dollars ($10,000) or less. (4) Contracts with the state or local governments of the State of Alabama.

Every mechanic, person, firm, or corporation who shall do or perform any work, or labor upon, or furnish any material, fixture, engine, boiler, waste disposal services and equipment, or machinery for any building or improvement on land, or for repairing, altering, or beautifying the same, under or by virtue of any contract with the owner or proprietor thereof, or his or her agent, architect, trustee, contractor, or subcontractor, upon complying with the provisions of this division, shall have a lien therefor on such building or improvements and on the land on which the same is situated, to the extent in ownership of all the right, title, and interest therein of the owner or proprietor, and to the extent in area of the entire lot or parcel of land in a city or town; or, if not in a city or town, of one acre in addition to the land upon which the building or improvement is situated; or, if employees of the contractor or persons furnishing material to him or her, the lien shall extend only to the amount of any unpaid balance due the contractor by the owner or proprietor, and the employees and materialmen shall also have a lien on the unpaid balance. But if the person, firm, or corporation, before furnishing any material, shall notify the owner or his or her agent in writing that certain specified material will be furnished by him or her to the contractor or subcontractor for use in the building or improvements on the land of the owner or proprietor at certain specified prices, unless the owner or proprietor or his or her agent objects thereto, the furnisher of the material shall have a lien for the full price thereof as specified in the notice to the owner or proprietor without regard to whether or not the amount of the claim for the material so furnished exceeds the unpaid balance due the contractor, unless on the notice herein provided for being given, the owner or proprietor or his or her agent shall notify the furnisher in writing before the material is used, that he or she will not be responsible for the price thereof.

The notice may be given in the following form, which shall be sufficient: “To __________, owner or proprietor: “Take notice, that the undersigned is about to furnish __________, your contractor or subcontractor, certain material for the construction, or for the repairing, altering, or beautifying of a building or buildings, or improvement or improvements, on the following described property: ______________________________________________ ______________________________________________ and there will become due to the undersigned on account thereof the price of the material, for the payment of which the undersigned will claim a lien.

Except as provided under (b) of this section, a written waiver of lien or stop-lending notice of rights created under AS 34.35.050 — 34.35.120 signed by a claimant requires no consideration and is valid and binding. A waiver permitted under this section may not relate to labor, materials, services, or equipment furnished after the date the waiver is signed by the claimant.

An individual described in AS 34.35.120 (10) may not waive right to claim a lien under AS 34.35.050 — 34.35.120. A waiver that purports to waive the lien rights of that individual or class of individuals is void.

“individual” means a natural person who actually performs labor upon a building or other improvement as an employee of the owner or any contractor furnishing labor, materials, services, or equipment for the construction, alteration, or repair of a building or other improvement

The legislative history of AS 34.35.117 also supports a finding that “individual” does not include contractors.

If Buckhorn is an “individual,” then all general contractors, including large, sophisticated contractors would lose the ability to waive their lien rights. Such a result is contrary to the intent of lien waivers — to help facilitate project financing.

Second, the trial court erred, as a matter of law, in construing the term “individual” in AS 34.35.120(10) to include Buckhorn and in awarding priority to Buckhorn’s lien, if valid, over Nystrom’s prior recorded deed of trust.

An owner, direct contractor, or subcontractor may not, by contract or otherwise, waive, affect, or impair any other claimant’s rights under this part, whether with or without notice, and any term of a contract that purports to do so is void and unenforceable unless and until the claimant executes and delivers a waiver and release under this article.

A claimant’s waiver and release does not release the owner, construction lender, or surety on a payment bond from a lien or claim unless both of the following conditions are satisfied: (a) The waiver and release is in substantially the form provided in this article and is signed by the claimant. (b) If the release is a conditional release, there is evidence of payment to the claimant. Evidence of payment may be either of the following: (1) The claimant’s endorsement on a single or joint payee check that has been paid by the financial institution on which it was drawn. (2) Written acknowledgment of payment by the claimant.

If a claimant is required to execute a waiver and release in exchange for, or in order to induce payment of, a progress payment and the claimant is not, in fact, paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall be null, void, and unenforceable unless it is in substantially the following form: CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT NOTICE: THIS DOCUMENT WAIVES THE CLAIMANT’S LIEN, STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS EFFECTIVE ON RECEIPT OF PAYMENT. A PERSON SHOULD NOT RELY ON THIS DOCUMENT UNLESS SATISFIED THAT THE CLAIMANT HAS RECEIVED PAYMENT. Identifying Information Name of Claimant: Name of Customer: Job Location: Owner: Through Date: Conditional Waiver and Release This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for labor and service provided, and equipment and material delivered, to the customer on this job through the Through Date of this document. 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 document is effective only on the claimant’s receipt of payment from the financial institution on which the following check is drawn: Maker of Check: Amount of Check: $ Check Payable to: Exceptions This document does not affect any of the following: (1) Retentions. (2) Extras for which the claimant has not received payment. (3) The following progress payments for which the claimant has previously given a conditional waiver and release but has not received payment: Date(s) of waiver and release: Amount(s) of unpaid progress payment(s): $ (4) Contract rights, including (A) a right based on rescission, abandonment, or breach of contract, and (B) the right to recover compensation for work not compensated by the payment. Signature Claimant’s Signature: Claimant’s Title: Date of Signature:

An oral or written statement purporting to waive, release, impair or otherwise adversely affect a lien or claim is void and unenforceable and does not create an estoppel or impairment of the lien or claim unless either of the following conditions is satisfied: (a) The statement is pursuant to a waiver and release under this article. (b) The claimant has actually received payment in full for the claim.

This article does not affect the enforceability of either an accord and satisfaction concerning a good faith dispute or an agreement made in settlement of an action pending in court if the accord and satisfaction or agreement and settlement make specific reference to the lien or claim.

If the claimant is required to execute a waiver and release in exchange for, or in order to induce payment of, a progress payment and the claimant asserts in the waiver that the claimant has, in fact, been paid the progress payment, the waiver and release shall be null, void, and unenforceable unless it is in substantially the following form, with the text of the “Notice to Claimant” in at least as large a type as the largest type otherwise in the form: UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT NOTICE TO CLAIMANT: THIS DOCUMENT WAIVES AND RELEASES LIEN, STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL WAIVER AND RELEASE FORM. Identifying Information Name of Claimant: Name of Customer: Job Location: Owner: Through Date: Unconditional Waiver and Release This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for labor and service provided, and equipment and material delivered, to the customer on this job through the Through Date of this document. 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. The claimant has received the following progress payment: $ Exceptions This document does not affect any of the following: (1) Retentions. (2) Extras for which the claimant has not received payment. (3) Contract rights, including (A) a right based on rescission, abandonment, or breach of contract, and (B) the right to recover compensation for work not compensated by the payment. Signature Claimant’s Signature: Claimant’s Title: Date of Signature:

If the claimant is required to execute a waiver and release in exchange for, or in order to induce payment of, a final payment and the claimant is not, in fact, paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall be null, void, and unenforceable unless it is in substantially the following form: CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT NOTICE: THIS DOCUMENT WAIVES THE CLAIMANT’S LIEN, STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS EFFECTIVE ON RECEIPT OF PAYMENT. A PERSON SHOULD NOT RELY ON THIS DOCUMENT UNLESS SATISFIED THAT THE CLAIMANT HAS RECEIVED PAYMENT. Identifying Information Name of Claimant: Name of Customer: Job Location: Owner: Conditional Waiver and Release This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for labor and service provided, and equipment and material delivered, to the customer on this job. 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 document is effective only on the claimant’s receipt of payment from the financial institution on which the following check is drawn: Maker of Check: Amount of Check: $ Check Payable to: Exceptions This document does not affect any of the following: Disputed claims for extras in the amount of: $ Signature Claimant’s Signature: Claimant’s Title: Date of Signature:

If the claimant is required to execute a waiver and release in exchange for, or in order to induce payment of, a final payment and the claimant asserts in the waiver that the claimant has, in fact, been paid the final payment, the waiver and release shall be null, void, and unenforceable unless it is in substantially the following form, with the text of the “Notice to Claimant” in at least as large a type as the largest type otherwise in the form: UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT NOTICE TO CLAIMANT: THIS DOCUMENT WAIVES AND RELEASES LIEN, STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL WAIVER AND RELEASE FORM. Identifying Information Name of Claimant: Name of Customer: Job Location: Owner: Unconditional Waiver and Release This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for all labor and service provided, and equipment and material delivered, to the customer on this job. 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. The claimant has been paid in full. Exceptions This document does not affect the following: Disputed claims for extras in the amount of: $ Signature Claimant’s Signature: Claimant’s Title: Date of Signature:

The provisions of this chapter apply to a work of improvement governed by this part.

(a) A claimant may reduce the amount of, or release in its entirety, a stop payment notice. The reduction or release shall be in writing and may be given in a form other than a waiver and release form provided in this article.

Any provision in a construction contract or any periodic lien waiver issued pursuant to a construction contract that purports to waive or release the right of a contractor, subcontractor or supplier engaged to perform services, perform labor or furnish materials under the construction contract to (1) claim a mechanic's lien, or (2) make a claim against a payment bond, for services, labor or materials which have not yet been performed and paid for shall be void and of no effect.

As used in sections 42-158i to 42-158n , inclusive, unless the context otherwise requires: (1) “Owner” means any individual, corporation, nonprofit corporation, partnership, limited partnership, limited liability company or other business entity that is the owner of record or lessee of real property upon which construction, renovation or rehabilitation is to be or is being performed pursuant to a construction contract regarding such real property. (2) “Construction contract” or “contract” means any contract for the construction, renovation or rehabilitation in this state on or after October 1, 1999, including any improvements to real property that are associated with such construction, renovation or rehabilitation, or any subcontract for construction, renovation or rehabilitation between an owner and a contractor, or between a contractor and a subcontractor or subcontractors, or between a subcontractor and any other subcontractor. “Construction contract” or “contract” does not include (A) any public works or other building contract entered into with this state, the United States, any other state, and any municipality or other political subdivision of this state or any other state, (B) a contract or project funded or insured by the United States Department of Housing and Urban Development, (C) a contract between an owner and a contractor for an amount of twenty-five thousand dollars or less or a subcontract which results from such a contract, or (D) a contract for a building intended for residential occupancy containing four or less units.

Notwithstanding any provision of subsection (a) of this section, this section shall not be construed to prohibit (1) the subordination of a mechanic's lien to the lien of a mortgage or security interest, or (2) the enforcement of an agreement to subordinate a mechanic's lien to the lien of a mortgage or security interest.

(b) Notwithstanding the provisions of any other law, except as provided in this subsection: Any contract, any agreement or understanding whereby the right to file or enforce any lien created under this chapter is waived, shall be void as against public policy and wholly unenforceable. This section shall not preclude a requirement for a written waiver of the right to file a mechanics’ lien executed and delivered by a contractor, subcontractor, material supplier or laborer simultaneously with or after payment for the labor performed or the materials supplied has been made to such contractor, subcontractor, material supplier or laborer nor shall this section be applicable to a written agreement to subordinate, release or satisfy all or part of such lien made after a statement of claim has been filed under this chapter. Nothing in this subsection shall amend, exempt, limit or qualify the provisions of § 2707 of this title.

An agreement by a broker to waive its right to a broker’s lien without having first received full payment is against public policy, void, and unenforceable.

(a) Persons entitled to avail themselves of the lien provided for in this chapter shall not be considered as waiving the same by granting a credit or receiving notes or other securities, unless the same be received as payment or the lien expressly waived, but the sole effect thereof shall be to prevent such persons from availing themselves of the liens provided for in this chapter until the expiration of the time agreed upon.

No lien shall be obtained under this chapter upon the lands, structure, or both, of any owner which is used solely as a residence of said owner when the owner has made either full or final payment to the contractor, in good faith, with whom the owner contracted for the construction, erection, building, improvement, alteration or repair thereof. Prior to or simultaneous with the receipt of any full or final payment by the contractor, the contractor must provide the owner either: (1) A notarized, verified written certification that the contractor has paid in full for all labor performed and materials furnished to the date of such full or final payment in or for such construction, erection, building, improvement, alteration or repair or (2) A written release of mechanics’ liens signed by all persons who would otherwise be entitled to avail themselves of the provisions of this chapter, containing a notarized, verified certification signed by the contractor that all of the persons signing the release constitute all of the persons who have furnished materials and performed labor in and for the construction, erection, building, improvement, alteration and repair to the date of the release and who would be entitled otherwise to file mechanics’ liens claims. Failure of the contractor to provide the owner a written certification or a release of mechanics’ liens at such time shall constitute sufficient cause for the immediate suspension, revocation or cancellation of the contractor’s occupational and business licenses. If the owner has not made full payment in good faith to such contractor, the lien may be obtained in accordance with this chapter, but it shall be a lien only to the extent of the balance of the payment due such contractor, which balance or portion shall be payable pro rata among the claimants who perfect liens. Payments made to the contractor by the owner after service of process, as provided in § 2715 of this title, shall not be deemed to be “in good faith.”

(1) The acceptance by the lienor of an unsecured note for all or any part of the amount of his or her demand shall not constitute a waiver of his or her lien therefor unless expressly so agreed in writing, nor shall it in any way affect the period for filing the notice under s. 713.06(2), or the claim of lien under s. 713.08.

(2) A right to claim a lien may not be waived in advance. A lien right may be waived only to the extent of labor, services, or materials furnished. Any waiver of a right to claim a lien that is made in advance is unenforceable.

(3) Any person may at any time waive, release, or satisfy any part of his or her lien under this part, either as to the amount due for labor, services, or materials furnished or for labor, services, or materials furnished through a certain date subject to exceptions specified at the time of release, or as to any part or parcel of the real property.

(4) When a lienor is required to execute a waiver or release of lien in exchange for, or to induce payment of, a progress payment, the waiver or release may be in substantially the following form:WAIVER AND RELEASE OF LIEN UPON PROGRESS PAYMENT The undersigned lienor, in consideration of the sum of $ , hereby waives and releases its lien and right to claim a lien for labor, services, or materials furnished through (insert date) to (insert the name of your customer) on the job of (insert the name of the owner) to the following property: (description of property) This waiver and release does not cover any retention or labor, services, or materials furnished after the date specified.

(5) When a lienor is required to execute a waiver or release of lien in exchange for, or to induce payment of, the final payment, the waiver and release may be in substantially the following form:WAIVER AND RELEASE OF LIEN UPON FINAL PAYMENT The undersigned lienor, in consideration of the final payment in the amount of $ , hereby waives and releases its lien and right to claim a lien for labor, services, or materials furnished to (insert the name of your customer) on the job of (insert the name of the owner) to the following described property: (description of property)

(6) A person may not require a lienor to furnish a lien waiver or release of lien that is different from the forms in subsection (4) or subsection (5).

(7) A lienor who executes a lien waiver and release in exchange for a check may condition the waiver and release on payment of the check. However, in the absence of a payment bond protecting the owner, the owner may withhold from any payment to the contractor the amount of any such unpaid check until any such condition is satisfied.

(8) A lien waiver or lien release that is not substantially similar to the forms in subsections (4) and (5) is enforceable in accordance with the terms of the lien waiver or lien release.

Section 713.20(2) formerly provided that anyone, other than a laborer, could waive a mechanics' lien at any time. The legislature recently amended this statute, however, and it now provides that a right to claim a lien may not be waived in advance. Ch. 88-397, Laws of Fla. Although not controlling in this case, the amendment illustrates a legislative policy against waiver.

MAY A SUBCONTRACTOR FURNISHING LABOR, SERVICES OR EQUIPMENT WORTH OVER $200,000 ON A PUBLIC WORKS PROJECT LAWFULLY WAIVE ITS RIGHTS TO THE CONTRACTOR'S BOND REQUIRED PURSUANT TO SECTIONS 255.05 AND 337.18, FLORIDA STATUTES (1985)? We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the negative.

Moreover, even though the legislature provided certain exemptions, which do not apply here, from the bond requirement in *959 section 255.05, [2] it chose not to allow unrestricted waiver. We hereby answer the certified question in the negative and approve the decision of the Second District Court of Appeal. It is so ordered. EHRLICH, C.J., and OVERTON, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.

(d) An agreement to waive any right to enforce or claim any lien under this Act, or an agreement to subordinate the lien, where the agreement is in anticipation of and in consideration for the awarding of a contract or subcontract, either express or implied, to perform work or supply materials for an improvement upon real property is against public policy and unenforceable.

This Section does not prohibit release of lien under subsection (b) of Section 35 of this Act, nor does it prohibit an agreement to subordinate a mechanics lien to a mortgage lien that secures a construction loan if that agreement is made after more than 50% of the loan has been disbursed to fund improvements to the property.

(c) The taking of additional security by the contractor or sub-contractor is not a waiver of any right of lien which he may have by virtue of this Act, unless made a waiver by express agreement of the parties and the waiver is not prohibited by this Act.

(b) If the legal effect of a provision in any contract between the owner and contractor or contractor and subcontractor is that no lien or claim may be filed or maintained, or that such contractor's lien shall be subordinated to the interests of any other party, and the provision is not prohibited by this Act, such provision shall be binding if made as part of an agreement not prohibited by this Act.

(e) Any provision in a contract, agreement, or understanding, when payment from a contractor to a subcontractor or supplier is conditioned upon receipt of the payment from any other party including a private or public owner, shall not be a defense by the party responsible for payment to a claim brought under Section 21, 22, 23, or 28 of this Act against the party.

(a) Whenever a claim for lien has been filed with the recorder of deeds, either by the contractor or sub-contractor, and is paid with cost of filing same, or where there is a failure to institute suit to enforce the same after demand as provided in the preceding Section within the time by this Act limited the person filing the same or some one by him duly authorized in writing so to do, shall acknowledge satisfaction or release thereof, in writing, on written demand of the owner, lienor, or any person interested in the real estate, or his or her agent or attorney, and on neglect to do so for 10 days after such written demand he or she shall be liable to the owner for the sum of $2,500, which may be recovered in a civil action together with the costs and the reasonable attorney's fees of the owner, lienor, or other person interested in the real estate, or his or her agent or attorney incurred in bringing such action.

(b) Such a satisfaction or release of lien may be filed with the recorder of deeds in whose office the claim for lien had been filed and when so filed shall forever thereafter discharge and release the claim for lien and shall bar all actions brought or to be brought thereupon.

Every person who furnishes any material or labor for, or performs any labor upon, any building or land for improvement, alteration, or repair thereof, including those engaged in the construction or repair of any work of internal or external improvement, and those engaged in grading, sodding, installing nursery stock, landscaping, sidewalk building, fencing on any land or lot, by virtue of any contract with the owner, owner-builder, general contractor, or subcontractor shall have a lien upon such building or improvement, and land belonging to the owner on which the same is situated or upon the land or lot so graded, landscaped, fenced, or otherwise improved, altered, or repaired, to secure payment for the material or labor furnished or labor performed.

An owner of a building, land, or improvement upon which a mechanic’s lien of a subcontractor may be posted is not required to pay the general contractor compensation for work done or material furnished for the building, land, or improvement until the expiration of ninety days after the completion of the building or improvement unless the general contractor furnishes to the owner one of the following: a. Receipts and waivers of claims for mechanics’ liens, signed by all persons who furnished material or performed labor for the building, land, or improvement.

b. A good and sufficient bond to be approved by the owner, conditioned that the owner shall be held harmless from any loss which the owner may sustain by reason of the posting of mechanics’ liens by subcontractors. 2. This section applies only to commercial construction properties.

A waiver of a right created by this chapter, including but not limited to a waiver of the right to file a lien pursuant to this chapter, is void and unenforceable. This section does not affect other provisions of a contract, including a production contract or a related document, policy, or agreement which can be given effect without the voided provision.

An owner-builder is not entitled to a lien under this chapter as to work the owner-builder performs, or is contractually obligated to perform, prior to transferring title to the buyer.

“Owner-builder” means the legal or equitable titleholder of record who furnishes material for or performs labor upon a building, erection, or other improvement, or who contracts with a subcontractor to furnish material for or perform labor upon a building, erection, or other improvement and who offers or intends to offer to sell the owner-builder’s property without occupying or using the structures, properties, developments, or improvements for a period of more than one year from the date the structure, property, development, or improvement is substantially completed or abandoned.

(2) a provision that purports to waive, release or extinguish rights provided by article 11 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto, except that a contract may require a contractor or subcontractor to provide a waiver or release of such rights as a condition for payment, but only to the extent of the amount of payment received; and

(c) Any provision in a contract for private construction providing that a payment from a contractor or subcontractor to a subcontractor is contingent or conditioned upon receipt of a payment from any other private party, including a private owner, is no defense to a claim to enforce a mechanic's lien or bond to secure payment of claims pursuant to the provisions of article 11 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto.

The rights and duties prescribed by this act shall not be waivable or varied under the terms of a contract. The terms of any contract waiving the rights and duties prescribed by this act shall be unenforceable.

The provisions of this act shall not apply to single family residential housing and multifamily residential housing of four units or less. The provisions of this act shall not apply to public works projects. The provisions of this act shall not apply to contracts entered into prior to the effective date of this act.

The following provisions in a contract for private construction shall be against public policy and shall be void and unenforceable: (1) A provision that purports to waive, release or extinguish the right to resolve disputes through litigation in court or substantive or procedural rights in connection with such litigation except that a contract may require binding arbitration as a substitute for litigation or require non-binding alternative dispute resolution as a prerequisite to litigation;

(3) a provision that purports to waive, release or extinguish rights of subrogation for losses or claims covered or paid by liability or workers compensation insurance except that a contract may require waiver of subrogation for losses or claims paid by a consolidated or wrap-up insurance program, owners and contractors protective liability insurance, or project management protective liability insurance, unless otherwise prohibited under subsection (b)(5) of K.S.A. 40-5403, and amendments thereto.

(b) "Construction" means furnishing labor, equipment, material or supplies used or consumed for the design, construction, alteration, renovation, repair or maintenance of a building, structure, road, bridge, water line, sewer line, oil line, gas line, appurtenance or other improvement to real property, including any moving, demolition or excavation. (c) "Contract" means a contract or agreement concerning construction made and entered into by and between an owner and a contractor, a contractor and a subcontractor or a subcontractor and another subcontractor.

by virtue of a contract with or by consent of the owner, has a lien thereon and on the land on which it stands and on any interest the owner has in the same, to secure payment thereof, with costs.

If the labor, materials or services were not furnished by a contract with the owner of the property affected, the owner may prevent a lien under section 3251 for labor, materials or services not then performed or furnished, by giving written notice to the person performing or furnishing the labor, materials or services that the owner will not be responsible for the performing or furnishing of the labor, materials or services.

The lien under section 3252 is dissolved unless the claimant, within 90 days after ceasing to labor, furnish materials or perform services: A. Files in the office of the register of deeds in the county or registry district in which the building, wharf or pier is situated a true statement of the amount due the claimant, with all just credits given, together with a description of the property intended to be covered by the lien sufficiently accurate to identify it and the names of the owners, if known. The statement must be subscribed and sworn to by the person claiming the lien, or by someone in the claimant's behalf, and recorded in a book kept for that purpose by the register of deeds for the county or registry district, who is entitled to the same fees as for recording mortgages; and [PL 2005, c. 287, §1 (NEW).] B. Provides a copy of the statement under paragraph A to the owner or owners by ordinary mail. For purposes of this paragraph, a post office certificate of mailing the notice to the owner is conclusive proof of receipt by the owner.

This section does not apply when the labor, materials or services are furnished by a contract with the owner of the property affected.

The liens mentioned in sections 3251 to 3254 may be preserved and enforced by action against the debtor and owner of the property affected and all other parties interested therein, filed with the Superior Court or District Court clerk in the county or division where the house, building or appurtenances, wharf, pier or building thereon on which a lien is claimed is situated within 120 days after the last of the labor or services are performed or labor, materials or services are so furnished, except as provided in section 3256 .

If the labor, materials or services were not performed or furnished by a contract with the owner of the property affected, the lien described in this chapter may only be enforced against the property affected to the extent of the balance due to the person with whom the owner has directly contracted to perform or furnish the labor, materials and services on which that lien claim is based. The defense established by this subsection shall only be available with respect to sums paid by the owner to the person with whom the owner has directly contracted where payment was made prior to commencement of an action to enforce such lien by the person performing or furnishing labor, materials or services without a contract with the owner or a written notice from the person performing or furnishing labor, materials or services without a contract with the owner which sets forth a description of the property sufficiently accurate to identify

In order to protect its mortgages’ *425 priorities, the Bank could and should have required Bedford Falls to obtain lien waivers from all subcontractors prior to the disbursements and should have tailored its disbursements to those waivers. The Bank failed to take these protective steps

Campbell paid Goodwin during the course of construction, and Goodwin provided lien waivers as it received payments. On December 12, 1990, Goodwin signed a lien waiver indicating to Campbell and Fox that it had been paid in full for all work billed through that date.

Consequently, the court did not commit clear error when it found that the retainage was the balance due Campbell from Fox and that Goodwin could enforce its lien against that sum. The entry is: Judgment affirmed.

Notwithstanding any contrary agreement, when a subcontractor or material supplier has performed in accordance with the provisions of a contract, a contractor shall pay to the subcontractor or material supplier, and each subcontractor shall in turn pay to its subcontractors or material suppliers, the full or proportional amount received for each subcontractor's work and materials based on work completed or service provided under the subcontract, 7 days after receipt of each progress or final payment or 7 days after receipt of the subcontractor's or material supplier's invoice, whichever is later.

Notwithstanding any contrary agreement, the substantially prevailing party in any proceeding to recover any payment within the scope of this chapter must be awarded reasonable attorney's fees in an amount to be determined by the court or arbitrator, together with expenses.

Nothing in this chapter prevents an owner, contractor or subcontractor from withholding payment in whole or in part under a construction contract in an amount equalling the value of any good faith claims against an invoicing contractor, subcontractor or material supplier, including claims arising from unsatisfactory job progress, defective construction or materials, disputed work or 3rd-party claims.

Provisions contained in, or executed in connection with, a building and construction contract requiring a contractor, subcontractor, or material supplier to waive the right to a mechanics lien or to a claim against a payment bond before the person has been paid for the labor or materials or both that the person furnished are void and unenforceable. This provision shall not affect the validity of a waiver as to any third party who detrimentally relies upon the waiver.

"Building and construction contract" means a contract for the design, construction, alteration, improvement, repair or maintenance of real property, highways, roads or bridges. The term does not include contracts for the maintenance or repair of machinery, equipment or other such devices used as part of a manufacturing, converting or other production process, including electric, gas, steam, and telephone utility equipment used for production, transmission, or distribution purposes.

For the purpose of this section, "building and construction contract" has the meaning given the term in section 337.01 .

A construction contract may not contain provisions requiring a contractor, subcontractor, or material supplier to waive the right to a construction lien or a right to a claim against a payment bond before the contractor, subcontractor, or material supplier has been paid for the labor, materials, or both labor and materials, furnished by the contractor, subcontractor, or material supplier.

A person who may claim a construction lien pursuant to this part shall give notice of the right to claim a lien to the contracting owner in order to claim a lien.

Except as provided in subsection (4), the notice may not be given later than 20 days after the date on which the services or materials are first furnished to the contracting owner. If notice is not given within this period, a lien is enforceable only for the services or materials furnished within the 20-day period before the date on which notice is given.

When payment for services or materials furnished pursuant to a real estate improvement contract, excluding a contract on an owner-occupied residence, is made by or on behalf of the contracting owner from funds provided by a regulated lender and secured by an interest, lien, mortgage, or encumbrance for the purpose of paying the particular real estate improvement being liened, the notice required by this section may not be given later than 45 days after the date on which the services or materials are first furnished to the contracting owner.

The following are not required to give notice of the right to claim a lien as required by this section: (a) an original contractor who furnishes services or materials directly to the owner at the owner's request; (b) a wage earner or laborer who performs personal labor services for a person furnishing any service or material pursuant to a real estate improvement contract; (c) a person who furnishes services or materials pursuant to a real estate improvement contract that relates to a dwelling for five or more families; and (d) a person who furnishes services or materials pursuant to a real estate improvement contract that relates to an improvement that is partly or wholly commercial in character.

The notice of the right to claim a lien must be sent to the contracting owner by certified mail or delivered personally to the owner. Notice by certified mail is effective on the date on which the notice is mailed. If the notice is delivered personally to the contracting owner, written acknowledgment of receipt must be obtained from the contracting owner. A person may not claim a construction lien unless the person has complied with this subsection.

A person who may claim a lien shall also file with the clerk and recorder of the county in which the improved real estate is located a copy of the notice of the right to claim a lien, in the form required by 71-3-532 . This copy may not be filed later than 5 business days after the date on which the notice of the right to claim a lien is given to the contracting owner.

If a notice of the right to claim a lien is required under this section, a person may not claim a construction lien pursuant to this part unless there is an unexpired notice of right to claim a construction lien or an unexpired continuation notice filed with the clerk and recorder at the time that the person files the lien.

A written waiver of construction lien rights signed by a claimant requires no consideration and is valid and binding, whether signed before or after the materials or services were contracted for or furnished. Ambiguities in a written waiver are construed against the claimant.

A written waiver waives all construction lien rights of the claimant as to the improvement to which the waiver relates unless the waiver is specifically limited to a particular lien right or a particular portion of the services or materials furnished.

A waiver of lien rights does not affect any contract rights of the claimant otherwise existing.

Acceptance of a promissory note or other evidence of debt is not a waiver of lien rights unless the note or other instrument expressly so declares.

Except as provided in sections 52-125 to 52-159 , no nonconsensual lien arises against real estate by reason of improvements made thereon.

Notwithstanding the provisions on existence of a construction lien of section 52-131 , no lien attaches under sections 52-125 to 52-159 to real estate owned by the state, a county, a municipality, or other governmental agency or political subdivision

Residential real estate shall mean, in relation to a protected party, real estate, improved or to be improved, containing not more than four dwelling units and no nonresidential uses for which the protected party is a lessor.

This section shall apply to a lien claimant only when the contracting owner is a protected party.

This section shall apply only when the real estate improvement contract is with a protected party.

Except as modified by subsections (4) and (5) of this section, as against a protected party contracting owner, the lien of a claimant other than a prime contractor is for the lesser of: (a) The amount unpaid under the claimant's contract; or (b) The amount unpaid under the prime contract through which the claimant claims at the time the contracting owner receives the claimant's notice of the right to assert a lien.

The following provisions in any contract or subcontract for construction work performed within the State of Nebraska shall be against public policy and shall be void and unenforceable: (1) A provision that purports to waive, release, or extinguish rights to file a claim against a payment or performance bond, except that a contract or subcontract may require a contractor or subcontractor to provide a waiver or release of such rights as a condition for payment, but only to the extent of the amount of the payment received;

The NCLA provides owners various options to avoid a construction lien from attaching to the real estate, such as procuring a surety bond 49 or obtaining a written waiver of construction lien rights of a potential claimant, 50 as well as methods for releasing the real estate from liens.

Nor is there evidence that Lund-Ross asked for lien waivers from any of the suppliers.

In order to hold that the release was valid and effective in the absence of reliance, there would have to be some showing’ of consideration. Under the facts here there was none.

And such a clause is strictly construed against the party claiming its benefit.

In July 2019, Signature abruptly ceased operations. The next month, and in accordance with the Act, Echo recorded a construction lien in the office of the Douglas County register of deeds in each case in the amounts of $11,604.46, $32,781.03, and $296,407.73, respectively.

In all three appeals, we find no abuse of discretion by the court in entering summary judgment and not granting equitable relief.

Westland was entitled to a subcontractor’s lien under the specific provisions of section 52-102, R. R. S. 1943.

Any liquidated or unliquidated claim against any political subdivision of this state arising from construction performed for such political subdivision shall: (a) Be presented in writing to the individual or officer as set forth in subsection (2) of this section; (b) state the name of the claimant and the amount of the claim; and (c) identify the item or service for which payment is claimed or the time, place, nature, and circumstance giving rise to the claim. All claims shall be filed within one hundred eighty days after the date of substantial completion of the construction project.

Waivers of construction lien rights are against public policy, unlawful, and void, unless given in consideration for payment for the work, services, materials or equipment provided or to be provided, and such waivers shall be effective only upon and to the extent that such payment is actually received.

In addition, as a benefit to contractors, the Construction Lien Law codified a prohibition on waivers. Waivers had been permitted under the Mechanic’s Lien Law, and contractors often were pressured to waive their Ken rights in exchange for signing construction contracts. Under the new Construction Lien Law, waivers on construction Ken rights are deemed void and against public policy “unless given in consideration for payment for the work, services, materials, or equipment provided, and ... [are] effective only upon and to the extent that such payment is actually received.” N.J.S.A. 2A:44A-38.

The Legislature’s primary purpose in revising the Lien Law was to simplify the lien-filing process. That was accomplished by streamlining the process to eliminate the prior law’s pre-filing requirement, which had caused tension between contractors and owners, and by abolishing lien waivers, which impinged on con *517 tractors’ rights to obtain construction liens.

An owner also may require a contractor to obtain lien waivers from subcontractors *71 and suppliers as they are paid, N.J.S.A. 2A:44A-38, but under the CLL such waivers are not considered essential because the property is protected to the extent that payments the owner has made are subtracted from the total contract price in measuring the lien fund.

Notwithstanding the provisions of any other law, any contract, agreement or understanding whereby the right to file or enforce any lien created under article two is waived, shall be void as against public policy and wholly unenforceable.

This section shall not preclude a requirement for a written waiver of the right to file a mechanic's lien executed and delivered by a contractor, subcontractor, material supplier or laborer simultaneously with or after payment for the labor performed or the materials furnished has been made to such contractor, subcontractor, material man or laborer nor shall this section be applicable to a written agreement to subordinate, release or satisfy all or part of such a lien made after a notice of lien has been filed.

We hold that a pay-when-paid provision which forces the subcontractor to assume the risk that the owner will fail to pay the general contractor is void and unenforceable as contrary to public policy set forth in the Lien Law § 34. By contrast, a pay-when-paid provision which merely fixes a time for payment does not indefinitely suspend a subcontractor’s right to payment upon the failure of an owner to pay the general contractor, and does not violate public policy as stated in the Lien Law.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the *160 questions by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question No. 1 answered in the affirmative, and certified question No. 2 not answered as academic.

§ 757. Void provisions. The following provisions of construction contracts shall be void and unenforceable: 1. A provision, covenant, clause or understanding in, collateral to or affecting a construction contract, with the exception of a contract with a material supplier, that makes the contract subject to the laws of another state or that requires any litigation, arbitration or other dispute resolution proceeding arising from the contract to be conducted in another state.

We reject plaintiff’s argument that the pay-when-paid provision in section 3.2 of the subcontract merely fixed a time for payment. A contract provision stating that payment will occur upon a stipulated event will be construed as a time for payment provision unless there is express language to the contrary in the contract

2. A provision, covenant, clause or understanding in, collateral to or affecting a construction contract stating that a party to the contract cannot suspend performance under the contract if another party to the contract fails to make prompt payments under the contract.

5. A provision, covenant, clause or understanding in, collateral to or affecting a construction contract requiring retainage as expressly provided for by section seven hundred fifty-six-c of this article in an amount exceeding five percent of the contract sum.

1. "Construction contract" means a written or oral agreement for the construction, reconstruction, alteration, maintenance, moving or demolition of any building, structure or improvement, or relating to the excavation of or other development or improvement to land, and where the aggregate cost of the construction project including all labor, services, materials and equipment to be furnished, equals or exceeds one hundred fifty thousand dollars. For the purposes of this article a construction contract shall not include any such contract made and awarded by the state, any public department, any public benefit corporation, any public corporation or official thereof, or a municipal corporation or official thereof for construction, reconstruction, alteration, repair, maintenance, moving or demolition of any public works project nor any contract with a contractor or subcontractor which is part of such project; or any such contract the purpose of which is the construction, reconstruction, alteration, repair, maintenance, moving or demolition of an individual one, two or three family residential dwelling or a residential tract development of one hundred or less one or two family dwellings, or any residential construction project where the aggregate size of such project is four thousand five hundred square feet or less, or any residential project of fewer than seventy-five units which receives financial assistance from the federal government, the state or a municipal entity designed for households earning an average of one hundred twenty-five percent of the housing and urban development agency area median income.

Section 3.2 of the subcontract agreement provides in relevant part: "it is specifically understood and agreed that THE PAYMENT TO THE TRADE CONTRACTOR [plaintiff] IS DEPENDENT, AS A CONDITION PRECEDENT, UPON THE construction manager [the general contractor] RECEIVING CONTRACT PAYMENTS, INCLUDING RETAINER FROM THE OWNER”.

In contrast, the face of the subcontract here explicitly makes payment from the owner to the general contractor a "condition precedent” to any payment to plaintiff. Since the unambiguous language of section 3.2 places the risk of the owner’s inability or failure to pay the general contractor squarely upon plaintiff, the pay-when-paid provision here cannot be construed as a time for payment clause.

However, a pay-when-paid provision as a condition precedent requires plaintiff to defer payment for its work until the general contractor has been paid by the owner. As the owner here has become insolvent, the owner may never make another contract payment to the general contractor. Because the lack of future payments by the owner is virtually certain, plaintiff’s right to receive payment has been indefinitely postponed, and plaintiff has effectively waived its right to enforce its mechanics’ liens.

In the case before us, plaintiff subcontractor is a Delaware corporation and defendant general contractor is a Florida corporation. The parties agreed that Florida law would govern their contract. Unlike New York, Florida allows pay-if-paid contracts. We must determine whether New York’s public policy against such contracts is so fundamental that it should override the parties’ choice of law. We hold that it is not, and that the parties’ choice of law controls.

The subcontract included a pay-if-paid clause stating that: “Upon final acceptance of the Work by Contractor and Owner, Contractor will pay Subcontractor for the Work at the prices and schedule and in the manner described in Schedule 1; provided that, all payments to Subcontractor by Contractor are expressly contingent upon and subject to receipt of payment for *628 the Work by Contractor from Owner

Both sides agree that the subcontract’s pay-if-paid clause violates New York’s public policy. 2 Were we not dealing with choice of law, we would simply apply Lien Law § 34 as inter *629 preted in West-Fair and the case would be closed.

Section 34 seeks to protect New York subcontractors from the oppressive use of bargaining power. Here, neither party is a New York corporation; notably, MasTec is a Florida corporation. As dissenting Justice Krausman pointed out, both are sophisticated commercial entities that knowingly and voluntarily entered into the subcontract.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiffs motion, insofar as it seeks to dismiss the fifth and eleventh affirmative defenses interposed in the answer, denied and the certified question answered in the negative.

We found this not to be a condition precedent but a timing mechanism ( 40 NY2d 883, *629 885 [1976]). We need not discuss the different ramifications of the “when” versus “if” formulations, which have been the subject of extensive commentary

Moreover, it was not until 2002 that New York enacted section 757 of the General Business Law rendering void any provision that makes a construction contract subject to the laws of another state.

Provisions in lien waivers, releases, construction agreements as defined in G.S. 22B-1(f)(1), or design professional agreements as defined in G.S. 22B-1(f)(5) purporting to require a promisor to submit a waiver or release of liens or claims as a condition of receiving interim or progress payments due from a promisee under a construction agreement or design professional agreement are void and unenforceable unless limited to the specific interim or progress payment actually received by the promisor in exchange for the lien waiver.

This section does not apply to the following: (1) Lien waivers or releases for final payments. (2) Agreements to settle and compromise disputed claims after the claim has been identified by the claimant in writing regardless of whether the promisor has initiated a civil action or arbitration proceeding.

(f) For purposes of this section, the following definitions shall apply: (1) Construction agreement. - Any promise or agreement in, or in connection with, a contract or agreement relative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, or appliance, including moving, demolition, and excavating connected therewith.

This section shall not affect an insurance contract, workers' compensation, or any other agreement issued by an insurer. This section shall not apply to lien or bond claims asserted under Chapter 44A of the General Statutes.

(4) Design professional. - A person or entity who is licensed under and provides professional services regulated by Chapters 83A, 89A, 89C, 89E, or 89F of the General Statutes. (5) Design professional agreement. - Any promise or agreement in, or in connection with, a contract or agreement with a design professional to provide design professional services. (6) Design professional services. - A service or work performed by a design professional for which licensure is required under Chapters 83A, 89A, 89C, 89E, or 89F of the General Statutes.

If the owner, trustee, or agent of the owner has received a valid waiver of lien, signed by the person that improves the real estate, a lien is not allowed.

Any person that improves real estate under a contract with the owner of the real estate or under contract with any agent, trustee, contractor, or subcontractor of the owner, has a lien upon the improvement and upon the land on which the improvement is situated or to which the improvement may be removed for the price or value of the contribution. - The amount of the lien is limited to the difference between the price paid by the owner, trustee, or agent and the price or value of the contribution. If the owner, trustee, or agent has paid the full price or value of the contribution, no lien is allowed.

Provided further that if the owner or an agent of the owner has received a waiver of lien signed by the person who improves the real estate by the contribution of labor, skill, or materials, no lien shall be allowed.

Section 35-27-02, NDCC, was amended in 1979 and the amended law, which became effective on 1 July 1979, reads as follows:

Any person that extends credit or makes a contract with any agent, trustee, contractor, or subcontractor of the owner for the improvement of real estate, upon demand, has the right to request and secure evidence of the legal description of the real estate upon which the improvement is located, including the name of the legal or equitable owner of the real estate. Written notice a lien will be claimed must be given to the legal or equitable owner of the real estate by certified mail at least ten days before the recording of the construction lien. - Notwithstanding any provision in this section, any person that performs labor or furnishes materials or services under chapter 35-24 is prohibited from claiming or maintaining a lien under this chapter.

Except when it is declared otherwise, the provisions of this code in respect to the rights and obligations of parties to contracts are subordinate to the intention of the parties, when ascertained in the manner prescribed by the chapter on the interpretation of contracts. The benefit thereof may be waived by any party entitled thereto, unless such waiver would be against public policy.

A party entitled to a mechanic’s lien may waive that right by a signed writing [NDCC 35-27-02; see NDCC 1-01-08; 1-02-28], or may be estopped to assert the mechanic’s lien by acts or conduct constituting estoppel.

A waiver requires voluntary and intentional relinquishment of a known right or privilege. Peterson v. Front Page, Inc., 462 N.W.2d 157 (N.D.1990).

A mechanic’s lien is purely a creature of statute, and the statutory requirements must be fairly met. Schaffer v. Smith, 113 N.W.2d 688 (N.D.1962). Rights under a mechanic’s lien are governed by the law in force at the time the right accrued.

At the time of Spiers’ contract with Dakota Building, § 35-27-02, NDCC, provided as follows: “Any person who improves real estate by the contribution of labor, skill, or materials under contract with the owner of such real estate shall have a lien upon the improvement, and upon the land on which it is situated or to which it may be removed, for the price or value of such contribution. Provided, however, that the amount of the lien shall only be for the difference between the price paid by the owner and the price or value of the contribution. If the owner has paid the full price or value of the contribution, no lien shall be allowed. No person shall have a lien for improving real estate resulting from extending credit to or making a contract with any agent, trustee, contractor, or subcontractor of such owner unless such person first notifies the owner in writing of the provisions of chapter 35-27

RC. 1311.05(A) states that a lien must be filed within 21 days after performing the first work or furnishing the first materials, unless that time is extended. {¶14} The statute allows for a twenty-one day window to file a notice of furnishing after the commencement of work.

In the event that an owner does record a notice of commencement but does so after the first work, labor, or material has been performed on, or furnished to, the improvement, then subcontractors and material suppliers have 21 days after the notice of commencement to file a notice of furnishing in order to perfect their liens, and they need not serve a notice of furnishing to preserve lien rights for the period before the notice of commencement is recorded. R.C. 1311.04(I).

Jones Corp. argues that Mr. Pitt’s failure to file a mechanic’s lien did not establish reliance because, pursuant to R.C. 1311.05, Mr. Pitt’s lien would have been untimely.

the trial court did not err by entering judgment in Mr. Pitt’s favor on the claim of promissory estoppel because the record demonstrates that Mr. Pitt established all of the elements of a claim for promissory estoppel. Accordingly, Jones Corp.’s first assignment of error is overruled.

“[A] subcontractor * * * who performs labor or work upon or furnishes material in furtherance of an improvement to real property and who wishes to preserve the subcontractor’s or material supplier’s lien rights shall serve a notice of furnishing * * * upon the owner’s, part owner’s, or lessee’s designee named in the notice of commencement or amended notice and the original contractor under the original contract pursuant to which the subcontractor or material supplier is performing labor or work or furnishing materials * * * within twenty-one days after performing the first labor or work or furnishing the first materials.”)

If an owner does not record a notice of commencement prior to the start of work, then the original contractor may request, in writing, that the owner record a notice of commencement and serve it on all of the various contractors and subcontractors. R.C. 1311.04(M)(1). If the owner fails to record a notice of commencement, or if a notice of commencement is recorded but is materially deficient in some way, then a subcontractor is not required to issue a notice of furnishing to preserve its lien rights. R.C. 1311.04(R).

R.C. 1311.01 provides the following definitions: (D) “Subcontractor” includes any person who undertakes to construct, alter, erect, improve, repair, demolish, remove, dig, or drill any part of any improvement under a contract with any person other than the owner, part owner, or lessee. (E) “Original contractor,” except as otherwise provided in section 1311.011 of the Revised Code, includes a construction manager and any person who undertakes to construct, alter, erect, improve, repair, demolish, remove, dig, or drill any part of any improvement under a contract with an owner, part owner, or lessee.

Under R.C. 1311.011(B)(1), a subcontractor may not obtain a lien to secure payment for work performed on a home-construction contract when the homeowner has paid the original contractor in full and payment was rendered before the homeowner received a copy of the subcontractor’s lien.

An original contractor, subcontractor or material supplier that performs in accordance with a construction contract is entitled to payment from the party with whom the original contractor, subcontractor or material supplier contracts.

If a subcontractor has performed in accordance with a construction contract, and the original contractor receives payment from the owner for work performed by the subcontractor, the original contractor shall pay the subcontractor for that work no later than seven days after the original contractor receives the payment. If a material supplier has performed in accordance with a construction contract, and the original contractor receives payment from the owner for materials or products provided by the material supplier, the original contractor shall pay the material supplier for those materials and products no later than seven days after the original contractor receives the payment. An original subcontractor that receives payment under this subsection for work provided to the original subcontractor by another subcontractor, or for materials or products provided to the original subcontractor, shall pay the other subcontractor or material supplier for the work, materials or products no later than seven days after the original subcontractor receives the payment.

Payment is not required under this subsection unless a subcontractor or material supplier provides to the original contractor or subcontractor a billing or invoice for the work performed or materials or products supplied in compliance with the terms of the contract between the parties. Each subcontractor or material supplier must provide an appropriate waiver of any lien for labor, equipment, services, materials or products in accordance with subcontract or purchase order terms and conditions. The original contractor or subcontractor may require that such waivers of lien be notarized.

ORS 701.620 to 701.640 do not apply to: (1) A contract for the construction, alteration, repair, maintenance, moving or demolition of a building that is subject to the Low-Rise Residential Dwelling Code; (2) A public contract under ORS 279.835 to 279.855 or ORS chapter 279A, 279B or 279C; or (3) Housing in which all or part of the dwelling units are reserved for rental to persons having an income equal to or less than 80 percent of the median household income for the area as determined by the Housing and Community Services Department.

purporting to bar the filing of a notice of intention or the taking of any steps to enforce a lien as set forth in this chapter is against public policy and is void and unenforceable.

This section shall not preclude a requirement for a written waiver of the right to file a mechanic’s lien executed and delivered by a contractor, subcontractor, material supplier, or laborer simultaneously with or after payment for the labor performed or the materials furnished has been made to such contractor, subcontractor, material supplier, or laborer.

A covenant, promise, agreement of understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair, or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith

It is important to distinguish between a contractual waiver of the right to arbitrate a dispute, which is discussed above, from a contractual waiver of a right to file a mechanic’s lien. General Laws 1956 § 34-28-1(b) *1289 expressly prohibits any contractual waiver of a party’s right to file a mechanic’s lien.

To achieve this end, any contractual agreement barring the filing or enforcement of a mechanic’s hen “is against pubhc policy and is void and unenforceable.” Section 34-28-1(b).

Any subordination agreement or release, bearing the signature of any person with authority to sign the agreement or release, or of the person who is designated in a notice of intention under § 34-28-4 as the person whose signature will bind the person filing the notice, which purports to subordinate or release any lien under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7 whether for work done or materials furnished prior to the agreement or release, or thereafter, or both, notwithstanding the fact that no consideration is given therefor, shall be enforceable according to its terms, by any other person who has changed his or her position in any way in reliance upon the subordination agreement or release

Any person entitled to any lien under § 34-28-1, 34-28-2 or 34-28-3 who releases the lien before receiving payment for the work done or materials furnished forming the basis of the lien, shall be entitled to demand and receive direct payment therefor from the owner or lessee or tenant or other person as may be obligated or permitted to make the payment on behalf of the owner or lessee or tenant, provided that the person entitled to the lien first obtains the written consent of all persons in line of privity between him or her and the owner or other person

No lien under § 34-28-1, 34-28-2 or 34-28-3 shall attach to any building, canal, turnpike, railroad, or other improvement, if the improvement is being constructed, erected, altered, or repaired by or for the state, or any city or town, or any subdivision or agency thereof, or to any land upon which the improvement exists, if the land is owned by the state or any city or town, or any subdivision or agency thereof, but the provisions of § 34-28-30 shall apply to buildings, canals, turnpikes, railroads, or other improvements being so constructed, erected, altered, or repaired.

who has not been paid in full therefor before the expiration of a period of ninety (90) days after the day on which the last of the labor was performed or furnished by him or her, or material or equipment furnished or supplied by him or her for which a claim is made, shall have the right to sue on the payment bond

A contractor may not file a lien, file a claim with the board, or bring or maintain in any court of this state a suit or action for compensation for the performance of any work on any structure or for the breach of any contract for work on any structure that is subject to this chapter, unless the contractor was

provided, however, that a lien waiver or release, which is a deliverable, shall comply with chapter 28 of title 34

A provision in a contract for construction that purports to waive, limit, or subvert this section or redefine or expand the conditions for achievement of substantial completion for payment of retainage shall be void and unenforceable.

This chapter is intended to afford a liberal remedy to all who have contributed labor, material, or equipment towards adding to the value of property to which the lien attaches and should be construed accordingly.

A covenant, promise, agreement, or understanding in, or in connection with or collateral to, a contract or agreement relative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, and appliance, including moving, demolition, and excavating connected with a building, structure, highway, road, appurtenance, or appliance

A court may choose not to apply this section if the court finds that to do so would result in a substantial injustice to the unregistered contractor.

provided, however, that any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing the payment bond shall have a right of action upon the payment bond upon giving written notice to the contractor within ninety (90) days from the date on which the person furnished or performed the last of the labor, or furnished or supplied the last of the material or equipment for which the claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the labor was furnished or performed or the material or equipment was furnished or supplied. The notice shall be served by mailing the same by certified mail, postage prepaid, in an envelope addressed to the contractor at any place he or she maintains an office, conducts his or her business, or his or her residence.

Furthermore, the remedy provided by the Mechanics’ Lien Law is not exclusive; “[ejxcept as otherwise specified, nothing in this chapter shall be construed to limit the *1290 right of any person, whether he or she have [sic ] a valid lien hereunder or not, to remedies otherwise available to him or her under law

Liens for materials, supplies, equipment, and services furnished under construction contracts to contractors or subcontractors and arising under Title 5 or Title 44 of the South Dakota Codified Laws or by virtue of the common law of this state may be expressly waived as provided in this chapter in addition to all other means presently existing under law by which such liens may be waived.

Any lien to which a person or corporation furnishing materials, supplies, equipment, and services to a contractor or subcontractor would otherwise be entitled under Title 5 or Title 44 of the South Dakota Codified Laws or by virtue of the common law of this state may be waived to the extent provided in this chapter by such person or corporation by the endorsement of a joint check wherein the payees include the contractor or subcontractor and the person or corporation furnishing materials, supplies, equipment, and services and by the execution of a separate agreement of waiver between the maker of the joint check and such person or corporation.

A joint check as used for the purposes provided in this chapter must have a provision on the reverse side thereof making reference to a separate written agreement of waiver between the maker and the person or corporation furnishing materials, supplies, equipment, or services to the contractor or subcontractor. Such provision must be conspicuous and mention that the payees, by their endorsements and in consideration of the payment represented by the joint check, jointly and severally waive all claims to which they might be entitled under Title 5 and Title 44 of the South Dakota Codified Laws and the common law of South Dakota for all materials, supplies, equipment, and services supplied under a clearly identified contract to the extent of and of the date of the joint check.

The endorsement of a joint check as provided herein and the execution of a separate written agreement of waiver by a person or corporation furnishing materials, supplies, equipment, and services to an owner, contractor, or a subcontractor shall constitute an express waiver of all rights and claims under Title 5 and Title 44 of the South Dakota Codified Laws and the common law of this state against the owner or contractor and his surety to the extent of, and as of the date of, the joint check endorsed.

(a) A waiver and release given by a claimant or potential claimant is unenforceable unless it substantially complies with the applicable form described by Subsections (b)-(e).

(a) Any waiver and release of a lien or payment bond claim under this chapter is unenforceable unless a waiver and release is executed and delivered in accordance with this subchapter. (b) A waiver and release is effective to release the owner, the owner's property, the contractor, and the surety on a payment bond from claims and liens only if: (1) the waiver and release substantially complies with one of the forms prescribed by Section 53.284 ; (2) the waiver and release is signed by the claimant or the claimant's authorized agent; and (3) in the case of a conditional release, evidence of payment to the claimant exists.

A person may not require a claimant or potential claimant to execute an unconditional waiver and release for a progress payment or final payment amount unless the claimant or potential claimant received payment in that amount in good and sufficient funds.

Notwithstanding any other law and except as provided by Section 53.282 , any contract, agreement, or understanding purporting to waive the right to file or enforce any lien or claim created under this chapter is void as against public policy.

(b) If a claimant or potential claimant is required to execute a waiver and release in exchange for or to induce the payment of a progress payment and is not paid in exchange for the waiver and release or if a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release must read: "CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT "Project ___________________ "Job No. ___________________ "On receipt by the signer of this document of a check from ________________ (maker of check) in the sum of $__________ payable to _____________________ (payee or payees of check) and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position that the signer has on the property of ________________ (owner) located at ______________________ (location) to the following extent: ______________________ (job description). "This release covers a progress payment for all labor, services, equipment, or materials furnished to the property or to __________________ (person with whom signer contracted) as indicated in the attached statement(s) or progress payment request(s), except for unpaid retention, pending modifications and changes, or other items furnished. "Before any recipient of this document relies on this document, the recipient should verify evidence of payment to the signer. "The signer warrants that the signer has already paid or will use the funds received from this progress payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or services provided for or to the above referenced project in regard to the attached statement(s) or progress payment request(s).

(c) If a claimant or potential claimant is required to execute an unconditional waiver and release to prove the receipt of good and sufficient funds for a progress payment and the claimant or potential claimant asserts in the waiver and release that the claimant or potential claimant has been paid the progress payment, the waiver and release must: (1) contain a notice at the top of the document, printed in bold type at least as large as the largest type used in the document, but not smaller than 10-point type, that reads: "NOTICE: "This document waives rights unconditionally and states that you have been paid for giving up those rights. It is prohibited for a person to require you to sign this document if you have not been paid the payment amount set forth below. If you have not been paid, use a conditional release form."; and (2) below the notice, read: "UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT "Project ___________________ "Job No. ___________________ "The signer of this document has been paid and has received a progress payment in the sum of $___________ for all labor, services, equipment, or materials furnished to the property or to _____________________ (person with whom signer contracted) on the property of _______________________ (owner) located at ______________________ (location) to the following extent: ______________________ (job description). The signer therefore waives and releases any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position that the signer has on the above referenced project to the following extent: "This release covers a progress payment for all labor, services, equipment, or materials furnished to the property or to __________________ (person with whom signer contracted) as indicated in the attached statement(s) or progress payment request(s), except for unpaid retention, pending modifications and changes, or other items furnished.

(d) If a claimant or potential claimant is required to execute a waiver and release in exchange for or to induce the payment of a final payment and is not paid in good and sufficient funds in exchange for the waiver and release or if a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release must read: "CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT "Project ___________________ "Job No. ___________________ "On receipt by the signer of this document of a check from ________________ (maker of check) in the sum of $____________ payable to _____________________ (payee or payees of check) and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position that the signer has on the property of _____________________ (owner) located at ______________________ (location) to the following extent: ______________________ (job description). "This release covers the final payment to the signer for all labor, services, equipment, or materials furnished to the property or to __________________ (person with whom signer contracted). "Before any recipient of this document relies on this document, the recipient should verify evidence of payment to the signer. "The signer warrants that the signer has already paid or will use the funds received from this final payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or services provided for or to the above referenced project up to the date of this waiver and release.

(e) If a claimant or potential claimant is required to execute an unconditional waiver and release to prove the receipt of good and sufficient funds for a final payment and the claimant or potential claimant asserts in the waiver and release that the claimant or potential claimant has been paid the final payment, the waiver and release must: (1) contain a notice at the top of the document, printed in bold type at least as large as the largest type used in the document, but not smaller than 10-point type, that reads: "NOTICE: "This document waives rights unconditionally and states that you have been paid for giving up those rights. It is prohibited for a person to require you to sign this document if you have not been paid the payment amount set forth below. If you have not been paid, use a conditional release form."; and (2) below the notice, read: "UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT "Project ___________________ "Job No. ___________________ "The signer of this document has been paid in full for all labor, services, equipment, or materials furnished to the property or to ___________________ (person with whom signer contracted) on the property of ______________________ (owner) located at ______________________ (location) to the following extent: ______________________ (job description). The signer therefore waives and releases any mechanic's lien right

(a) A statement purporting to waive, release, or otherwise adversely affect a lien or payment bond claim is not enforceable and does not create an estoppel or impairment of a lien or payment bond claim unless: (1) the statement is in writing and substantially complies with a form prescribed by Section 53.284 ; (2) the claimant has actually received payment in good and sufficient funds in full for the lien or payment bond claim; or (3) the statement is: (A) in a written original contract or subcontract for the construction, remodel, or repair of a single-family house, townhouse, or duplex or for land development related to a single-family house, townhouse, or duplex; and (B) made before labor or materials are provided under the original contract or subcontract. (b) The filing of a lien rendered unenforceable by a lien waiver under Subsection (a)(3) does not violate Section 12.002 , Civil Practice and Remedies Code, unless: (1) an owner or original contractor sends a written explanation of the basis for nonpayment, evidence of the contractual waiver of lien rights, and a notice of request for release of the lien to the claimant at the claimant's address stated in the lien affidavit; and (2) the lien claimant does not release the filed lien affidavit on or before the 14th day after the date the owner or the original contractor sends the items required by Subdivision (1).

(c) Subsection (a)(3) does not apply to a person who supplies only material, and not labor, for the construction, remodel, or repair of a single-family house, townhouse, or duplex or for land development related to a single-family house, townhouse, or duplex.

A right or privilege under this chapter may not be waived or limited by contract. A provision of a contract purporting to waive or limit a right or privilege under this chapter is void. Notwithstanding Subsection (1) , a claimant may waive or limit, in whole or in part, a lien right under this chapter in consideration of payment as provided in Section 38-1a-802

Notwithstanding Section 38-1a-105 , a claimant's written consent that waives or limits the claimant's lien rights is enforceable only if the claimant: executes a waiver and release that is signed by the claimant or the claimant's authorized agent; or for a restrictive endorsement on a check, includes a restrictive endorsement on a check that is: signed by the claimant or the claimant's authorized agent; and in substantially the same form set forth in Subsection (4)(d) ; and receives payment of the amount identified in the waiver and release or check that includes the restrictive endorsement: including payment by a joint payee check; and for a progress payment, only to the extent of the payment.

If the conditions of Subsection (3)(a) are met: the waiver and release described in Subsection (3)(a) is void; and the following will not be affected by the claimant's execution of the waiver and release: any lien; any lien right; any bond right; any contract right; or any other right to recover payment afforded to the claimant in law or equity.

Notwithstanding the language of a waiver and release described in Subsection (2) , Subsection (3)(b) applies if: the payment given in exchange for any waiver and release of lien is made by check; and the check fails to clear the depository institution on which it is drawn for any reason.

This waiver and release applies to a progress payment for the work, materials, equipment, or a combination of work, materials, and equipment furnished by the undersigned to the Property or to the Undersigned's Customer which are the subject of the Invoice or Payment Application, but only to the extent of the Payment Amount. This waiver and release does not apply to any retention withheld; any items, modifications, or changes pending approval; disputed items and claims; or items furnished or invoiced after the Payment Period.

If the conditions of Subsection (5)(b) are met, this section does not affect the enforcement of: an accord and satisfaction regarding a bona fide dispute; or an agreement made in settlement of an action pending in any court or arbitration. Pursuant to Subsection (5)(a) , this section does not affect enforcement of an accord and satisfaction or settlement described in Subsection (5)(a) if the accord and satisfaction or settlement: is in a writing signed by the claimant; and specifically references the lien rights waived or impaired.

As used in this section: "Check" means a payment instrument on a depository institution including: a check; a draft; an order; or other instrument. "Depository institution" is as defined in Section 7-1-103 . "Receives payment" means, in the case of a restrictive endorsement, a payee has endorsed a check and the check is presented to and paid by the depository institution on which it is drawn.

A waiver and release given by a claimant meets the requirements of this section if it is in substantially the form provided in this Subsection (4) for the circumstance provided in this Subsection (4) .

If using a restrictive endorsement under Subsection (4)(d) , the person preparing the check shall indicate whether the check is for a progress payment or a final payment by circling the word "progress" if the check is for a progress payment, or the word "final" if the check is for a final payment. If a restrictive endorsement does not indicate whether the check is for a progress payment or a final payment, it is considered to be for a progress payment.

Any right to file or enforce any mechanics' lien granted hereunder may be waived in whole or in part at any time by any person entitled to such lien, except that a general contractor, subcontractor, lower-tier subcontractor, or material supplier may not waive or diminish his lien rights in a contract in advance of furnishing any labor, services, or materials. A provision that waives or diminishes a general contractor's, subcontractor's, lower-tier subcontractor's, or material supplier's lien rights in a contract executed prior to providing any labor, services, or materials is null and void.

A person who performs labor without a valid license or certificate issued by the Board for Contractors pursuant to Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1, or without the proper class of license for the value of the work to be performed, when such a license or certificate is required by law for the labor performed shall not be entitled to a lien pursuant to this section.

A subcontractor as defined in § 43-1 , lower-tier subcontractor, or material supplier may not waive or diminish his right to assert payment bond claims or his right to assert claims for demonstrated additional costs in a contract in advance of furnishing any labor, services, or materials. A provision that waives or diminishes a subcontractor's, lower-tier subcontractor's, or material supplier's right to assert payment bond claims or his right to assert claims for demonstrated additional costs in a contract executed prior to providing any labor, services, or materials is null and void.

Any waiver of the right to sue on the payment bond required by this section shall be void unless it is in writing, signed by the person whose right is waived, and executed after such person has performed labor or furnished material in accordance with the contract documents.

Such a waiver "must be express, or, if it is implied, it must be established by clear and convincing evidence."

Although a person entitled to a mechanic’s lien may waive that right in whole or part, Code § 43-3(c), the general rule is that an agreement to waive or release a mechanic’s lien must be supported by consideration to be valid and binding. See Walker & LaBerge Co. v. Bank, 206 Va. 683, 688, 692 , 146 S.E.2d 239, 243, 245-46 (1966). See generally, 53 Am. Jur.2d Mech. Liens § 292 (1970 & Supp. 1986); 57 C.J.S. Mech. Liens § 223 (1948 & Supp. 1986). Sufficient consideration exists if the promisee is induced by the waiver to do something that he is not legally bound to do or refrains from doing anything he has a legal right to do, or if the promisee acts in reliance upon the waiver to his detriment.

But when the claim is for repairs or improvements to existing structures only, no lien shall attach to the property repaired or improved unless such repairs or improvements were ordered or authorized by the owner, or his agent.

B. Any claimant who has a direct contractual relationship with any subcontractor but who has no contractual relationship, express or implied, with the contractor, may bring an action on the contractor's payment bond only if he has given written notice to the contractor within 90 days from the day on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished. Notice to the contractor shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business. Claims for sums withheld as retainages with respect to labor performed or materials furnished, shall not be subject to the time limitations stated in this subsection.

C. Any action on a payment bond shall be brought within one year after the day on which the person bringing such action last performed labor or last furnished or supplied materials.

All persons performing labor or furnishing materials of the value of $150 or more, including the reasonable rental or use value of equipment, for the construction, removal, repair or improvement of any building or structure permanently annexed to the freehold, and all persons performing any labor or furnishing materials of like value for the construction of any railroad, shall have a lien, if perfected as hereinafter provided, upon such building or structure, and so much land therewith as shall be necessary for the convenient use and enjoyment thereof, and upon such railroad and franchises for the work done and materials furnished, subject to the provisions of § 43-20 .

Consequently, we hold that the trial court erred in refusing to rule that JSC waived its rights to file mechanic's liens.

The cash payments that United Masonry received, coupled with the inducement to Riggs and Chicago Title to continue construction advances, constituted sufficient consideration for the waivers.

(1) The rights provided in chapter 223, Laws of 1992 may not be waived by the parties and a contract provision that provides for waiver of the rights provided in chapter 223, Laws of 1992 is void as against public policy. (2) Chapter 223, Laws of 1992 is to be liberally construed to provide security for all parties intended to be protected by its provisions.

RCW 39.76.011, 60.28.011, 60.28.021, 60.28.051, 39.04.250, and 39.04.900 are applicable to all public works contracts entered into on or after September 1, 1992, relating to the construction of any work of improvement.

(2) Every person performing labor or furnishing supplies toward the completion of a public improvement contract has a lien upon moneys reserved by a public body under the provisions of a public improvement contract. However, the notice of the lien of the claimant must be given within forty-five days of completion of the contract work, and in the manner provided in RCW 39.08.030.

(1)(a) Except as provided in (b) of this subsection, public improvement contracts must provide, and public bodies must reserve, a contract retainage not to exceed five percent of the moneys earned by the contractor as a trust fund for the protection and payment of: (i) The claims of any person arising under the contract; and (ii) the state with respect to taxes, increases, and penalties imposed pursuant to Titles 50, 51, and 82 RCW which may be due from such contractor.

(b) Public improvement contracts funded in whole or in part by federal transportation funds must rely upon the contract bond as referred to in chapter 39.08 RCW for the protection and payment of: (i) The claims of any person or persons arising under the contract to the extent such claims are provided for in RCW 39.08.010; and (ii) the state with respect to taxes, increases, and penalties incurred on the public improvement project under Titles 50, 51, and 82 RCW which may be due. The contract bond must remain in full force and effect until, at a minimum, all claims filed in compliance with chapter 39.08 RCW are resolved.

(3) The contractor at any time may request the contract retainage be reduced to one hundred percent of the value of the work remaining on the project. (a) After completion of all contract work other than landscaping, the contractor may request that the public body release and pay in full the amounts retained during the performance of the contract, and sixty days thereafter the public body must release and pay in full the amounts retained (other than continuing retention of five percent of the moneys earned for landscaping) subject to the provisions of chapter 39.12 RCW and this chapter. (b) Sixty days after completion of all contract work the public body must release and pay in full the amounts retained during the performance of the contract subject to the provisions of chapter 39.12 RCW and this chapter.

A contract between an employer and employee may not waive or require an employee to waive the right to a wage lien under this chapter. A provision of a contract made in violation of this section is void as against the public policy of this state.

(9) An owner of commercial real estate may request that a broker waive the rights to a lien under this chapter, and such a waiver contained in the commission agreement signed by the broker is effective to waive the broker's rights to a lien under this chapter.

(6) A contractor may submit a bond for all or any portion of the contract retainage in a form acceptable to the public body and from an authorized surety insurer. The public body may require that the authorized surety have a minimum A.M. Best financial strength rating so long as that minimum rating does not exceed A-. The public body must comply with the provisions of RCW 48.28.010. At any time prior to final formal acceptance of the project, a subcontractor may request the contractor to submit a bond to the public owner for that portion of the contractor's retainage pertaining to the subcontractor in a form acceptable to the public body and from a bonding company meeting standards established by the public body. The contractor may withhold the subcontractor's portion of the bond premium. Within thirty days of receipt of the request, the contractor shall provide and the public body shall accept a bond meeting these requirements unless the public body can demonstrate good cause for refusing to accept it, the bond is not commercially available, or the subcontractor refuses to pay the subcontractor's portion of the bond premium and to provide the contractor with a like bond. The contractor's bond and any proceeds therefrom are subject to all claims and liens and in the same manner and priority as set forth for retained percentages in this chapter. The public body must release the bonded portion of the retained funds to the contractor within thirty days of accepting the bond from the contractor. Whenever a public body accepts a bond in lieu of retained funds from a contractor, the contractor must accept like bonds from any subcontractors or suppliers from which the contractor has retained funds. The contractor must then release the funds retained from the subcontractor or supplier to the subcontractor or supplier within thirty days of accepting the bond from the subcontractor or supplier.

(10) Contracts on projects funded in whole or in part by farmers home administration and subject to farmers home administration regulations are not subject to subsections (1) through (9) of this section.

(11) This subsection applies only to a public body that has contracted for the construction of a facility using the general contractor/construction manager procedure, as defined under RCW 39.10.210. If the work performed by a subcontractor on the project has been completed within the first half of the time provided in the general contractor/construction manager contract for completing the work, the public body may accept the completion of the subcontract. The public body must give public notice of this acceptance. After a forty-five day period for giving notice of liens, and compliance with the retainage release procedures in RCW 60.28.021, the public body may release that portion of the retained funds associated with the subcontract. Claims against the retained funds after the forty-five day period are not valid.

(12) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise. (a) "Contract retainage" means an amount reserved by a public body from the moneys earned by a person under a public improvement contract. (b) "Person" means a person or persons, mechanic, subcontractor, or materialperson who performs labor or provides materials for a public improvement contract, and any other person who supplies the person with provisions or supplies for the carrying on of a public improvement contract. (c) "Public body" means the state, or a county, city, town, district, board, or other public body. (d) "Public improvement contract" means a contract for public improvements or work, other than for professional services, or a work order as defined in RCW 39.10.210.

The taking of a promissory note or other evidence of indebtedness for any labor, professional services, material, or equipment furnished for which a lien is created by this chapter does not discharge the lien therefor, unless expressly received as payment and so specified therein. Nothing in this chapter shall be construed to impair or affect the right of any person to whom any debt may be due for the furnishing of labor, professional services, material, or equipment to maintain a personal action to recover the debt against any person liable therefor. [ 1991 c 281 s 19.]

We also agree with Jones' assertion that the policy behind the statute was to ensure that contractors and subcontractors were paid for their work before they were required to produce a lien waiver.

However, we do not agree that the construction lien waiver filed by Jones is consequently void. Wisconsin Stat. § 779.05(1) specifically allows a subcontractor who has signed a contract containing a lien waiver provision to "refuse to furnish a waiver unless paid in full for the work or material to which the waiver relates."

However, as a general proposition, every person, sophisticated or otherwise, is presumed to know the law.

Jones correctly indicates that Wis. Stat. § 779.135 (1) voids a provision that requires a subcontractor to waive its right to a construction lien before it *477 can get paid.

Wisconsin Stat. § 779.135 states in relevant part: The following provisions in contracts for the improvement of land in this state are void: (I) Provisions requiring a contractor, subcontractor or material supplier to waive his or her right to a construction hen or to a claim against a payment bond before he or she has been paid for the labor or materials or both that he or she furnished.

Thus, the legislature has provided a subcontractor facing a void construction lien waiver contract provision with a choice: it can either tender a lien *478 waiver prior to being paid or refuse to do so until it is paid. By giving the subcontractor a choice, the legislature has essentially made a policy decision that endorses whatever course of action the subcontractor takes. Here, Jones submitted a construction lien waiver before being paid notwithstanding the void contract waiver provision. In light of § 779.05(1), Jones' construction lien waiver is valid.

Jones argues this conclusion places an unreasonable level of legal sophistication on subcontractors and assumes Jones knew it could refuse to comply with a void contract provision.

We reject Jones' invitation to supplement the statute with an "innocent party" requirement because this is a matter for legislative action.

Wisconsin Stat. § 779.05(1) reads in full: Any document signed by a lien claimant or potential claimant and purporting to be a waiver of construction lien rights under this subchapter, is valid and binding as a waiver whether or not consideration was paid therefor and whether the document was signed before or after the labor or material was furnished or contracted for. Any ambiguity in such document shall be construed against the person signing it. Any waiver document shall be deemed to waive all lien rights of the signer for all labor and materials furnished or to be furnished by the claimant at any time for the improvement to which the waiver relates, except to the extent that the document specifically and expressly limits the waiver to apply to a particular portion of such labor and materials: A lien claimant or potential lien claimant of whom a waiver is requested is entitled to refuse to furnish a waiver unless paid in full for the work or material to which the waiver relates. A waiver furnished is a waiver of hen rights only, and not of any contract rights of the claimant otherwise existing.

Jones argues the trial court erred by concluding Jones (1) tendered a valid construction lien waiver and (2) could not recover the reasonable value of its services on an unjust enrichment theory. We affirm the judgment.

Here, it is unrefuted that Northland paid Tomlinson the contract price plus excess costs. Thus, Northland has fully paid for the benefits it received. Therefore, because Jones' unjust enrichment claim fails as a matter of law, the trial court did not erroneously exercise its discretion by denying Jones equitable relief.

Construction liens can be waived under Wis. Stat. § 779.05(1). That statute provides in relevant part: Any waiver document shall be deemed to waive all lien rights of the signer for all labor, services, materials, plans, or specifications performed, furnished, or procured, or to be performed, furnished, or procured, by the claimant at any time for the improvement to which the waiver relates, except to the extent that the document specifically and expressly limits the waiver to apply to a particular portion of such labor, services, materials, plans, or specifications. The statute further directs that "[a]ny ambiguity in such document shall be construed against the person signing it.

The construction lien waiver document on its face satisfies the statutory requirements of Wis. Stat. § 779.05(1) necessary to limit the waiver of Great Lakes' lien rights. The document "specifically and expressly" restricts the lien waiver to "a particular portion of such labor, services, materials, plans, or specifications"——the $33,448 received in consideration of the waiver. By the Court.—The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.