Who uses these forms
The Civil Code sets out four waiver and release forms [7] [8] [9] [10], one per section. Two are conditional and two are unconditional, and each kind comes in a progress payment version and a final payment version. The chapter they sit in applies to a work of improvement governed by the part of the Civil Code that contains it [1].
Their force is mandatory. Each form section covers a waiver and release a claimant is required to sign in exchange for a payment, or to induce one: the conditional sections where the claimant is not in fact paid for it or is given a check, the unconditional sections where the claimant asserts in the waiver that it has been paid. Such a document is null, void and unenforceable unless it is in substantially the form printed in the section [7] [8] [9] [10]. Every form covers lien, stop payment notice and payment bond rights together.
What the statute says about them
The two conditional forms state on their face that they take effect only when the claimant receives payment from the financial institution on which a named check is drawn [7] [9]. Section 8124 adds that a waiver and release releases the owner, the construction lender or a payment bond surety only if it is in substantially the statutory form and signed by the claimant, and, for a conditional release, only if there is evidence of payment [3]. That evidence is either the claimant's endorsement on a single or joint payee check paid by the drawee institution, or the claimant's written acknowledgment of payment [3].
The two unconditional forms instead recite that payment has already been received: a stated progress payment on one, payment in full on the other [8] [10]. On both, the Notice to Claimant has to appear in type at least as large as the largest type used anywhere else in the form [8] [10].
Outside the forms, § 8126 treats an oral or written statement that purports to waive, release or impair a lien or claim as void and unenforceable, unless it is made under a waiver and release in the article or the claimant has actually been paid in full [4].
No notarization is called for. Each form closes with the claimant's signature, the claimant's title and the date of signature [7] [8] [9] [10].
Reading the blanks
All four forms have an Identifying Information block naming the claimant, the customer, the job location and the owner. The two progress payment forms add a "Through Date", the date through which the waived rights run.
The conditional forms then ask for the maker of the check, the amount of the check and the name of its payee. The unconditional progress form has one amount line, for the progress payment the claimant has received.
Every form carries an Exceptions section. On the progress payment forms it lists retentions, unpaid extras and contract rights as untouched, and the conditional progress form adds lines for the dates and amounts of earlier progress payments covered by a conditional waiver but still unpaid. On both final payment forms, the only blank under Exceptions is an amount of disputed claims for extras. Each form also waives rights under a written change order fully executed before the claimant signs, unless listed as an exception.
What changed recently
The four form sections were added by Stats. 2010, ch. 697 (SB 189), effective January 1, 2011, and became operative July 1, 2012 [7] [8] [9] [10]. None of the four has been amended since enactment.
Related
- Lien waiver forms by state.
- California retainage law.
- Lien waiver template, labeled as not a statutory form, for states without a statutory form.