When construction work is done, the person paying for the work should get a release of payment claims. If they’re paying a contractor, the people who did the actual work should also give a release for their payment. Lienors have to release part of their claim when they get paid. The form and timing of the release can cause problems. Homeowners have to follow the same rules as businesses. The key is for the person getting paid to only release their payment rights for the amount they’re paid, and for the person paying to get a release for everything they’re paying for. There are other issues that come up with payment and releases under the law. Before 1988, owners and contractors would make construction workers sign contracts saying they couldn’t file a lien for the work they were about to do. This made it hard for the workers to get jobs. In 1988, Florida changed the law to say that workers can’t waive their right to file a lien before they do the work. This means that any contracts saying workers can’t file a lien for work they haven’t done yet are not enforceable. It’s important to understand the anti-waiver provision in construction law. Basically, a subcontractor cannot waive their right to get paid for work before they actually do the work. But if they sign a release saying they won’t claim payment for work they’ve already done, they can’t change their mind later unless there was a mistake or misconduct. So, it’s important to be careful when signing releases and make sure you get paid for all the work you’ve done. The subcontractor should have changed the release form to exclude certain types of payments and work. They could have also asked for a modified release in exchange for payment. In Florida, there are legal forms for construction liens, and subcontractors can’t be forced to use a different form. The form also allows for conditional releases in exchange for payment. 1) When you pay someone for work, it’s a good idea to get a release of all their payment claims, not just their lien rights. If they insist on only giving a release for lien rights, you should also get a separate release for other payment claims.
2) When you make a progress payment, the form you use should release the contractor’s lien rights through a specific date, not just for the amount of the payment. This protects you from other potential claims the contractor might have. Basically, a “final release” is not really final if the contractor does more work after getting paid. So, to make sure the final payment is really final, the contractor signs a document saying they won’t do any more work and won’t try to put a lien on the property in the future. The undersigned promises that they have been paid in full for their work and won’t do any more work unless it’s for free to fix any problems. They also agree to defend the company from any claims from them for work done before or after today’s date.
[Name of Lienor]
By: [Your Name] Dated: [Today’s Date]
If the law changes to say that you can’t waive your right to a lien until you’ve been paid in full, then people might ask you to agree to this before you start working. This would mean that the person hiring you wouldn’t have to let you know when they finish the project.
It’s also been decided that you can give up your right to a lien, but it has to be very clear before it counts. In this case, it’s not clear because of some conflicting laws. If someone is paying for construction work, they usually don’t have to get a release from every worker on the site. This is because worker liens are rare and usually for small amounts of money. A smart payer might ask the person they’re paying to swear that all the workers have been paid. This is just a common practice, not a law. If a contract says the payer needs a release before paying, that overrules the common practice. That’s based on Florida law. Larry R. Leiby is a lawyer who knows a lot about construction law and has been involved in making sure lawyers are experts in construction law. We want our members to understand their responsibilities to the public, help make the legal system better, and improve the study of law.
Source: https://www.floridabar.org/the-florida-bar-journal/when-is-a-final-construction-lien-release-really-final/
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