Is this custom-drafted lien waiver enforceable?
Not as a waiver and release, if it was drafted from scratch, with two statutory exits that do not depend on form. A waiver and release given by a claimant or potential claimant is unenforceable unless it substantially complies with the applicable statutory form prescribed by § 53.284(b)-(e), and under § 53.281(a) any waiver and release of a lien or payment bond claim is unenforceable unless EXECUTED AND DELIVERED in accordance with the subchapter. § 53.282(a) then states the only ways a non-conforming statement can still bind: the claimant has actually received payment in good and sufficient funds in full for the lien or payment bond claim, or the statement is in a written original contract or subcontract for the construction, remodel or repair of a single-family house, townhouse or duplex (or related land development) and was made before labor or materials were provided. The form that applies depends on the situation: subsection (b) governs a waiver executed in exchange for or to induce a PROGRESS payment where the claimant has not yet been paid, or where a single-payee or joint-payee check is given in exchange, and requires the prescribed 'CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT' language. The other three forms are not optional variants either: (c) prescribes the UNCONDITIONAL waiver on a progress payment and (e) the unconditional waiver on a final payment, and each must carry, at the top of the document in bold type at least as large as the largest type used and not smaller than 10-point, a NOTICE stating that the document waives rights unconditionally and says you have been paid, that it is prohibited for a person to require your signature if you have not been paid, and that an unpaid signer should use a conditional release form instead; (d) prescribes the CONDITIONAL waiver on a final payment. The two conditional forms (b) and (d) take effect only when the named check 'has been properly endorsed and has been paid by the bank on which it is drawn', and each tells the recipient that before relying on the document 'the recipient should verify evidence of payment to the signer'. Both progress-payment forms, conditional and unconditional, release the progress payment 'except for unpaid retention, pending modifications and changes, or other items furnished': a carve-out a reader of the headline never sees.
The trap
Clarity is not the test here; conformity is, and form is only one of FOUR conditions. Under § 53.281(a) the waiver and release must be executed AND DELIVERED in accordance with the subchapter, and under § 53.281(b) it is effective only if it substantially complies with a § 53.284 form, is signed by the claimant or its authorized agent, AND, for a conditional release, evidence of payment to the claimant exists. The four permutations (conditional versus unconditional, progress versus final) are not interchangeable: a conditional form is contingent on the check being endorsed and paid by the bank, which is the protection a claimant loses by signing the unconditional version early. § 53.283 goes further than form: a person may NOT require a claimant to execute an unconditional waiver for a progress or final payment unless the claimant has actually received that amount in good and sufficient funds. And § 53.286 voids, as against public policy, any contract purporting to waive the right to file or enforce a lien at all, but only 'except as provided by Section 53.282', and § 53.282 is where the advance waiver survives. Its (a) is DISJUNCTIVE: a statement purporting to waive or release a lien or payment bond claim is unenforceable UNLESS it substantially complies with a § 53.284 form, OR the claimant has actually received payment in good and sufficient funds in full, OR, and this is the one that contradicts the flat answer. The statement is 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 one, and is made BEFORE labor or materials are provided. So on those residential categories an advance contractual lien waiver in the original contract or subcontract is enforceable, and the right question is whether the job is one of them and whether the waiver predates the work. Two edges on that exit: § 53.282(c) takes a material-only supplier (one who supplies no labor) back out of (a)(3), so a supplier's advance waiver does not stand on it; and § 53.282(b) makes filing a lien rendered unenforceable by an (a)(3) waiver a § 12.002 CPRC problem only after the owner or original contractor sends a written explanation of the basis for nonpayment, evidence of the contractual waiver and a notice of request for release to the claimant AT THE ADDRESS STATED IN THE LIEN AFFIDAVIT, and the claimant fails to release the filed affidavit on or before the 14th day after those items are sent.
10 authorities
- statuteTex. Prop. Code § 53.284enacted 2012-01-01
The words that state the rule
(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).
- statuteTex. Prop. Code § 53.281enactment date not established
The words that state the rule
(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.
- statuteTex. Prop. Code § 53.283enactment date not established
The words that state the rule
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.
- statuteTex. Prop. Code § 53.286enactment date not established
The words that state the rule
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.
- statuteTex. Prop. Code § 53.284enacted 2012-01-01
The words that state the rule
(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).
- statuteTex. Prop. Code § 53.284enacted 2012-01-01
The words that state the rule
(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.
- statuteTex. Prop. Code § 53.284enacted 2012-01-01
The words that state the rule
(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.
- statuteTex. Prop. Code § 53.284enacted 2012-01-01
The words that state the rule
(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
- statuteTex. Prop. Code § 53.282enacted 2012-01-01
The words that state the rule
(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).
- statuteTex. Prop. Code § 53.282enacted 2012-01-01
The words that state the rule
(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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.