Lien waivers are part of getting paid on a construction project. But they can also create risk if they are not reviewed carefully.
It is not uncommon for contractors and subcontractors to give up more than they intended when signing a lien waiver. In some cases, that includes claims for additional work, delays, or disputed costs. Once those rights are waived, they can be difficult or impossible to recover.
Understanding what you’re releasing and what you are not is critical every time you submit a lien waiver.
Why Preserving Claims Matters
Lien waivers are often treated as routine paperwork. They are submitted with pay applications and signed as part of the payment process. But the language in these documents can go far beyond confirming payment.
For example, AIA Document G901™ – Generic Conditional Waiver and Release on Progress Payment, includes language that waives lien rights for work performed through a specific date and amount. It also ties that waiver to payment received or to be received.
In practical terms, the waiver may limit your ability to:
- lien rights for work covered by that payment
- the ability to file a lien for those amounts
- certain related claims, unless they are clearly preserved
Courts tend to enforce lien waiver language as written. In one case, a contractor signed a waiver that broadly released “any and all claims” related to the project. The court upheld that language, even though the contractor argued that was not the intent. The result was a complete loss of claims under the subcontract.
This is why the exact wording of a lien waiver matters. If it is broad and no exceptions are listed, it may eliminate rights to unpaid retention, change orders, delays, or disputed amounts.
3 Things To Look for Before You Sign
Before submitting a lien waiver, take time to review what the document actually covers. Focus on three key areas: scope, timing, and exceptions.
- Confirm the scope of the release. Some waivers apply only to a specific payment period. Others may include broader language that extends beyond what has been paid.
- Check the timing. Make sure the waiver aligns with the payment you are receiving. A waiver tied to the wrong date or amount can create gaps in your protection.
- Review the exceptions. This is most important because it’s where you preserve your rights.
Use Exceptions To Preserve Your Rights
AIA Contract Documents lien waiver forms include an “Exceptions” section that allows you to list any rights or claims you are not waiving. This section is critical.
For example, standard AIA forms prompt users to identify items such as unpaid retention, pending change orders, extra work, or disputed claims.
If you are aware of any issues with the project, this is where you document them. That may include:
- Additional scope that has not been paid.
- Delays or resequencing impacts.
- Pending modifications or change orders.
- Disputed amounts.
You can also include broader language to preserve claims that may not yet be fully defined. The key is to be intentional. If a claim is not listed or otherwise preserved, it may be waived.
Make Review Part of Your Process
Every waiver should be reviewed before it is signed and submitted. That includes confirming what is being released, what is being preserved, and how the document aligns with the current payment.
A consistent review process helps reduce risk and ensures you are not giving up rights unintentionally. As a best practice, teams should align lien waiver review with their payment workflow and train project staff on what to look for.
Before submitting any lien waiver, confirm one thing clearly: What rights are you giving up, and what rights are you keeping?
Related AIA Contract Documents Forms
The AIA Contract Documents program has developed a limited number of Sworn Construction Statements, and Lien Waiver and Release forms that might be used in specific states. In addition, we have also developed generic versions of those documents that might be used in the remaining states. To learn more, visit Important Considerations for Sworn Construction Statements and Lien Waiver and Release Forms or watch a short video AIA Contract Documents New Sworn Construction Statement and Lien Waiver and Release Forms.
State-Specific Lien Waiver and Release Forms
Several states regulate Lien Waiver and Release forms and require that a specific form be used on projects in that state. Depending on the jurisdiction of your project, governing law may require specific content and formatting within these documents. If your project is located in the states listed below, consider using an AIA Contract Documents state-specific form. It is important to consult with an attorney to determine which form is suitable for your needs.
Arizona
California
Florida
Georgia
Massachusetts
Michigan
Mississippi
Missouri
Nevada
Texas
Utah
Wyoming
AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.