Is this lien waiver enforceable, and can the owner make us sign its own form?
A right to claim a construction lien may not be waived in advance, and any advance waiver is unenforceable; a lien right may be waived only to the extent of labor, services or materials actually furnished (Fla. Stat. § 713.20(2)). Section 713.20(4)-(5) supplies statutory progress-payment and final-payment waiver forms, and § 713.20(6) forbids requiring a lienor to furnish a waiver different from those forms. A lienor who signs a waiver in exchange for a check may condition it on payment of the check, but the same subsection gives the other side something back: where no payment bond protects the owner, the owner may withhold from any payment to the contractor the amount of the unpaid check until the condition is satisfied (§ 713.20(7)). Two more subsections frame all of this. Accepting an unsecured note for the amount demanded is not a waiver of the lien unless it is expressly so agreed in writing, and does not affect the filing periods under § 713.06(2) or § 713.08 (§ 713.20(1)); and § 713.20(3) lets a lienor waive, release or satisfy any part of the lien at any time, whether by amount, by work done through a certain date subject to exceptions specified at the time of release, or by parcel.
The trap
Subsections (6) and (8) point in opposite directions and (8) is the one that bites. Nobody may REQUIRE a lienor to sign a non-statutory waiver, but § 713.20(8) provides that a waiver or release that is not substantially similar to the statutory forms 'is enforceable in accordance with the terms of the lien waiver or lien release'. So the custom, broader waiver you should have refused binds you by its own words once signed, except that no form can waive lien rights for labor, services or materials not yet furnished: § 713.20(2)'s advance-waiver bar is unqualified. Note what the statutory progress-payment form in subsection (4) carries that a custom form will quietly drop: 'This waiver and release does not cover any retention or labor, services, or materials furnished after the date specified.' Sign the owner's form instead and you lose that sentence. On a public job the parallel question for the payment bond has its own answer: asked whether a subcontractor on a public works project could lawfully waive its rights to the contractor's bond required by §§ 255.05 and 337.18, the Florida Supreme Court answered the certified question in the negative and approved the Second District, a unanimous court reasoning that although the legislature wrote exemptions into § 255.05 it chose not to allow unrestricted waiver.
11 authorities
- statuteFla. Stat. § 713.20enactment date not established
The words that state the rule
(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.
- statuteFla. Stat. § 713.20enactment date not established
The words that state the rule
(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.
- statuteFla. Stat. § 713.20enactment date not established
The words that state the rule
(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.
- statuteFla. Stat. § 713.20enactment date not established
The words that state the rule
(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.
- statuteFla. Stat. § 713.20enactment date not established
The words that state the rule
(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)
- statuteFla. Stat. § 713.20enactment date not established
The words that state the rule
(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).
- statuteFla. Stat. § 713.20enactment date not established
The words that state the rule
(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.
- statuteFla. Stat. § 713.20enactment date not established
The words that state the rule
(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.
- case542 So. 2d 957American Cas. Co. v. Coastal Caisson Drill Co.Fla.decided 1989-03-16read it at the source ↗
The words that state the rule
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.
- case542 So. 2d 957American Cas. Co. v. Coastal Caisson Drill Co.Fla.decided 1989-03-16read it at the source ↗
The words that state the rule
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.
- case542 So. 2d 957American Cas. Co. v. Coastal Caisson Drill Co.Fla.decided 1989-03-16read it at the source ↗
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.