Hello - The GC sent over a lien waiver that they want signed with their monthly billing. This is for a progress payment as the project is still ongoing. However, I am concerned about the wording at the top of the page. Typically progress lien waivers are through that particular months billing period NOT the full and final contract date. Here is a copy and paste of the wording less the GC's name and project address.................... "State of: GEORGIA PROGRESS SUBCONTRACTOR RELEASE AND LIEN WAIVER The undersigned represents and warrants that it has been paid and has received (or that it will be paid and will receive) $ ______________ . ____ as full and final settlement under the Subcontract Agreement dated __01/18/23____" 1. The undersigned and the Contractor have fully settled all terms and conditions of the Subcontract Agreement (including any amendments or modifications thereto), as well as any other written or oral commitments, agreements, and/or understandings in connection with the Project. 2. The undersigned has been paid in full (or it will be paid in full via proceeds from this pay application) for the labor, services, and materials in connection with the Subcontract Agreement, including all work performed or any materials provided by its subcontractors, vendors, suppliers, materialmen, laborers, or other persons or entities. 3. The undersigned has paid in full (or it will pay in full via proceeds from this pay application) all its subcontractors, vendors, suppliers, materialmen, laborers, and other person or entity providing services, labor, or materials to the Project; there are no outstanding claims, demands, or rights to liens against the undersigned, the Project, the Contractor or the Owner in connection with the Subcontract Agreement on the part of any person or entity; and no claims, demands, or liens have been filed against the undersigned, the Project, the Contractor or the Owner relating to the Subcontract Agreement. 4. The undersigned releases and discharges Contractor and Owner from all claims, demands, or causes of action (including all lien claims and rights) that the undersigned has, or might have, under any present or future law, against either of them in connection with the Subcontract Agreement. The undersigned hereby specifically waives and releases any lien or claim or right to lien in connection with the Subcontract Agreement against Contractor, Owner, Owner’s property, and the Project, and also specifically waives, to the extent allowed by law, all liens, claims, or rights of lien in connection with the Subcontract Agreement by the undersigned’s subcontractors, materialmen, laborers, and all other persons or entities furnishing services, labor, or materials in connection with the Subcontract Agreement. 5. The undersigned shall indemnify, defend, and hold harmless Contractor and Owner from any action, proceeding, arbitration, claim, demand, lien, or right to lien relating to the Subcontract Agreement, and shall pay any costs, expenses, and/or attorneys’ fees incurred by Contractor and/or Owner in connection therewith. The undersigned makes the foregoing representations and warranties with full knowledge that Contractor and Owner shall be entitled to rely upon the truth and accuracy thereof. The undersigned certifies and warrants that the undersigned has the power and authority to execute this release and lien waiver on behalf of the entity named herein and that such entity is bound hereby. I, a Notary Public for the above State, certify that the ‘undersigned’ has personally appeared before me and has stated that he/she holds the title as he/she has written and has the power and authority to execute this document. NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY FOR THE AMOUNT PAID AND LISTED ON THIS LIEN WAIVER. IT STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS FOR THE AMOUNT ON THIS LIEN WAIVER. THIS DOCUMENT IS IN FULL FORCE ONCE YOU SIGN IT.
Your concerns are well founded. The language of this progress payment waiver is inappropriate; it reads more like a final waiver. The document purports to release ALL claims under your subcontract. Obviously it needs to be restricted to a waiver of claims through a particular date.
The form deviates from the required language in the Georgia form, and for that reason may be unenforceable. Under the Georgia lien statute, lien waivers must follow the statutory language set forth in the statute. However, I would not rely on that legal argument and would be extremely reluctant to sign the document. In any event, the statutory language for a waiver upon an interim (progress) payment is as follows:
WAIVER AND RELEASE UPON INTERIM PAYMENT
STATE OF GEORGIA
COUNTY OF _________
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY _______________________ (NAME OF CONTRACTOR) TO FURNISH _______________________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS _______________________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF _________________, COUNTY OF _____________, AND IS OWNED BY _______________________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
UPON THE RECEIPT OF THE SUM OF $__________, THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND THROUGH THE DATE OF _______________________ (DATE) AND EXCEPTING THOSE RIGHTS AND LIENS THAT THE MECHANIC AND/OR MATERIALMAN MIGHT HAVE IN ANY RETAINED AMOUNTS, ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID BUILDING OR PREMISES.
GIVEN UNDER HAND AND SEAL THIS ______ DAY OF ______________, ____.
__________________ (SEAL)
_________________________
_______________________
(WITNESS)
_______________________
(ADDRESS)
NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE WAIVED AND RELEASED ANY AND ALL LIENS AND CLAIMS OF LIENS UPON THE FOREGOING DESCRIBED PROPERTY AND ANY RIGHTS REGARDING ANY LABOR OR MATERIAL BOND REGARDING THE SAID PROPERTY TO THE EXTENT (AND ONLY TO THE EXTENT) SET FORTH ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 90 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE AN AFFIDAVIT OF NONPAYMENT PRIOR TO THE EXPIRATION OF SUCH 90 DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. § 44-14-366.