Hi, I was working as a subcontractor in a commercial build-out in California. We have submitted pay Apps monthly and in the contract there is a waiver of lien against the owner. GC refused to pay us with the reasoning that the tenant has not paid them. We have been in this project since June and we completed the job in October. Although we submitted the pay apps regularly, we have not been paid since the first day of job. In the contract we have the term that the GC will pay subs when owner payment is received. What do you recommend us to do? Regards,
A few things. First, you cannot waive a lien before work begins in California. The contract may say that, but its not enforceable in court. Second, that clause about pay-when-paid has limits to it. They still have to pay you within a "reasonable" time. It's not some indefinite period that then becomes a "pay-if-paid" clause, which like above is not enforceable in court.
A construction attorney can walk you through some options which can include a breach of contract claim or lien foreclosures.