Is the up-front construction lien waiver in our subcontract enforceable in Nebraska?
Yes. The statute says so in terms. Neb. Rev. Stat. § 52-144(1): “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.” Subsection (2) makes the default total rather than partial: “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.” Two things survive a waiver. § 52-144(3): “A waiver of lien rights does not affect any contract rights of the claimant otherwise existing.” And § 52-144(4): “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.” The Supreme Court has acknowledged the pre-attachment use in Nore Electric v. S & H Holdings, listing the owner's options: “The NCLA provides owners various options to avoid a construction lien from attaching to the real estate, such as procuring a surety bond”. The sentence continues, at the next footnote, with obtaining a written waiver of construction lien rights of a potential claimant. On public work there is nothing to waive: Neb. Rev. Stat. § 52-132 says “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”, and the right that matters there is the payment-bond claim, which Neb. Rev. Stat. § 45-1209(1) protects by voiding “[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 trap
Nebraska inverts, in one sentence, the two protections a lien claimant relies on everywhere else. The advance waiver is good, “whether signed before or after”, so a no-lien covenant in the signature packet binds from day one; and it needs no consideration, so the usual “I was never paid for it” answer is gone. Ambiguity is construed AGAINST THE CLAIMANT, which is against the subcontractor or supplier and usually against the party who did not draft it, although the statutory test turns on being the claimant and not on who drafted the waiver: the opposite of the ordinary instinct, and the opposite of what the same body of Nebraska law does to an exculpatory clause, which Sinu v. Concordia University says is “strictly construed against the party claiming its benefit”. The practical consequence is subsection (2): a monthly progress-payment waiver that does not say in terms which lien right, which dates and which dollars it covers waives THE WHOLE JOB, and with ambiguity running against you there is no rescue. A RESEARCH TRAP SITS ON TOP OF THIS. Westland Homes Corp. v. Hall refused to enforce a lien release given for a check that bounced, holding “[i]n order to hold that the release was valid and effective in the absence of reliance, there would have to be some” showing of consideration, and it is dead law on that point, decided under the repealed mechanic's lien statutes before the Nebraska Construction Lien Act took effect on January 1, 1982. § 52-144(1) reverses its holding directly. A researcher who finds Westland and stops has the rule exactly backwards, and no later-treatment scan will catch it, because supersession by statute uses none of the words a scan looks for. From the owner's or general contractor's side the trap runs the other way: waivers from your subcontractor do nothing about that subcontractor's SUPPLIERS, who sign nothing and lien anyway. Echo Group v. Tradesmen International turned in part on exactly that, “Nor is there evidence that Lund-Ross asked for lien waivers from any of the suppliers”, and the supplier's three liens ($11,604.46, $32,781.03 and $296,407.73) survived every equitable defense on summary judgment.
19 authorities
- statuteNeb. Rev. Stat. § 52-144enactment date not established
The words that state the rule
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.
- statuteNeb. Rev. Stat. § 52-144enactment date not established
The words that state the rule
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.
- statuteNeb. Rev. Stat. § 52-144enactment date not established
The words that state the rule
A waiver of lien rights does not affect any contract rights of the claimant otherwise existing.
- statuteNeb. Rev. Stat. § 52-144enactment date not established
The words that state the rule
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.
- statuteNeb. Rev. Stat. § 52-126enactment date not established
The words that state the rule
Except as provided in sections 52-125 to 52-159 , no nonconsensual lien arises against real estate by reason of improvements made thereon.
- statuteNeb. Rev. Stat. § 52-132enactment date not established
The words that state the rule
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
- statuteNeb. Rev. Stat. § 52-129enactment date not established
The words that state the rule
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.
- statuteNeb. Rev. Stat. § 52-135enactment date not established
The words that state the rule
This section shall apply to a lien claimant only when the contracting owner is a protected party.
- statuteNeb. Rev. Stat. § 52-143enactment date not established
The words that state the rule
This section shall apply only when the real estate improvement contract is with a protected party.
- statuteNeb. Rev. Stat. § 52-136enactment date not established
The words that state the rule
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.
- statuteNeb. Rev. Stat. § 45-1209enactment date not established
The words that state the rule
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 words that state the rule
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.
The words that state the rule
Nor is there evidence that Lund-Ross asked for lien waivers from any of the suppliers.
The words that state the rule
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.
The words that state the rule
And such a clause is strictly construed against the party claiming its benefit.
The words that state the rule
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.
The words that state the rule
In all three appeals, we find no abuse of discretion by the court in entering summary judgment and not granting equitable relief.
The words that state the rule
Westland was entitled to a subcontractor’s lien under the specific provisions of section 52-102, R. R. S. 1943.
- statuteNeb. Rev. Stat. § 45-1210enactment date not established
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.