Generally speaking, you cannot add language to a lien waiver form in California. Though it’s common for lenders, owners, developers, and general contractors to desire specific lien waiver language and forms, California strictly regulates which lien waiver forms can be exchanged by project participants. As this post will explore, there may be a little bit of wiggle room, but the risk of adding any language at all is pretty substantial.
California Lien Waiver Forms Are Regulated
Nearly every state has some laws governing the lien waiver process, but California is one of 12 states that publishes an actual lien waiver form, and specifically states that construction project participants must use the published form.
The language — which you can view in California Civl Code §8120 – §8138 — repeatedly states that the “waiver and release” exchanged by the parties must be “substantially” the same form provided within the statues. The forms are then very explicitly provided.
Here are the 4 California statutory lien waiver forms:
- Unconditional Final (payment in hand)
- Unconditional Partial (payment in hand)
- Conditional Final (payment not in hand)
- Conditional Partial (payment not in hand)
You can also access our California Lien Waiver FAQs & Resources here.
If you’re in the business of collecting, tracking, or providing lien waivers in the state of California, then you definitely want to orient your process around these 4 forms. But you may be wondering…can we alter them just slightly? Can we add something into them? Just how much alteration can be done before they are “substantially” different?
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Adding Any Words or Language To A California Lien Waiver Form
If you’re inclined to add anything to a California lien form, my immediate reaction is to tell you to stop! Don’t do it. Don’t add a word … not a single punctuation mark.
In my opinion, adding anything to the standard language carries significant risk, not the least of which is finding yourself in litigation arguing about what changes amount to anything “substantial,” and which do not. It’s probably a pretty good rule of thumb that if something is worth adding to the form, or if you desire to have something additional in the form, then the thing so worth the risk of non-conformance is going to be “substantial” enough to trigger invalidity under the statute. And accordingly, you should just leave the thing alone.
The good news for anyone in the construction industry is that the California lien waiver forms are very straightforward, and are fair to all parties. There really isn’t any legitimate reason to alter the forms, and since doing so carries significant risk, it’s best to exchange this form exactly as it is.
