108.2457 - Term of contract that attempts to waive or impair lien rights of contractor, subcontractor or supplier void; requirements for enforceability of waiver or release of rights of lien claimant;
108.2457 Term of contract that attempts to waive or impair lien rights of contractor, subcontractor or supplier void; requirements for enforceability of waiver or release of rights of lien claimant; effect of payment in form of two-party joint check; forms.
1. Any term of a contract that attempts to waive or impair the lien rights of a contractor, subcontractor or supplier is void. An owner, contractor or subcontractor by any term of a contract, or otherwise, may not obtain the waiver of, or impair the lien rights of, a contractor, subcontractor or supplier, except as provided in this section. Any written consent given by a lien claimant that waives or limits any lien rights is unenforceable unless the lien claimant:
(a) Executes and delivers a waiver and release that is signed by the lien claimant or the lien claimant’s authorized agent in the form set forth in this section; and
(b) In the case of a conditional waiver and release, receives payment of the amount identified in the conditional waiver and release.
2. An oral or written statement purporting to waive, release or otherwise adversely affect the rights of a lien claimant is not enforceable and does not create any estoppel or impairment of a lien unless:
(a) There is a written waiver and release in the form set forth in this section; and
(b) The lien claimant received payment for the lien and then only to the extent of the payment received.
3. Payment in the form of a two-party joint check made payable to a lien claimant and another joint payee who are in privity with each other shall, upon endorsement by the lien claimant and the joint check clearing the bank upon which it is drawn, be deemed to be payment to the lien claimant for only:
(a) The amount of the joint check;
(b) The amount the payor intended to pay the lien claimant out of the joint check; or
(c) The balance owed to the lien claimant for the work, materials or equipment covered by the joint check, whichever is less.
4. This section does not affect the enforceability of either an accord and satisfaction regarding a bona fide dispute or any agreement made in settlement of an action pending in any court or arbitration, provided the accord and satisfaction or settlement makes specific reference to the lien rights waived or impaired and is in a writing signed by the lien claimant.
5. The waiver and release given by any lien claimant is unenforceable unless it is in the following forms in the following circumstances:
(a) Where the lien claimant is required to execute a waiver and release in exchange for or to induce the payment of a progress billing and the lien claimant is not in fact paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release must be in the following form:
CONDITIONAL WAIVER AND RELEASE
UPON PROGRESS PAYMENT
Property Name:..........................................................................................................................
Property Location:.....................................................................................................................
Undersigned’s Customer:..........................................................................................................
Invoice/Payment Application Number:.................................................................................
Payment Amount:.....................................................................................................................
Upon receipt by the undersigned of a check in the above-referenced Payment Amount payable to the undersigned, and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release and the undersigned shall be deemed to waive any notice of lien, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to payment rights that the undersigned has on the above-described Property to the following extent:
This release covers a progress payment for the work, materials or equipment furnished by the undersigned to the Property or to the Undersigned’s Customer which are the subject of the Invoice or Payment Application, but only to the extent of the Payment Amount or such portion of the Payment Amount as the undersigned is actually paid, and does not cover any retention withheld, any items, modifications or changes pending approval, disputed items and claims, or items furnished that are not paid. Before any recipient of this document relies on it, the recipient should verify evidence of payment to the undersigned. The undersigned warrants that he or she either has already paid or will use the money received from this progress payment promptly to pay in full all laborers, subcontractors, materialmen and suppliers for all work, materials or equipment that are the subject of this waiver and release.
Dated:...................................................
.......................................................
(Company Name)
By:................................................
Its:.................................................
(b) Where the lien claimant has been paid in full or a part of the amount provided for in the progress billing, the waiver and release of the amount paid must be in the following form:
UNCONDITIONAL WAIVER AND RELEASE
UPON PROGRESS PAYMENT
Property Name:..........................................................................................................................
Property Location:.....................................................................................................................
Undersigned’s Customer:..........................................................................................................
Invoice/Payment Application Number:.................................................................................
Payment Amount:.....................................................................................................................
The undersigned has been paid and has received a progress payment in the above-referenced Payment Amount for all work, materials and equipment the undersigned furnished to the Customer for the above-described Property and does hereby waive and release any notice of lien, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to payment rights that the undersigned has on the above-described Property to the following extent:
This release covers a progress payment for the work, materials and equipment furnished by the undersigned to the Property or to the Undersigned’s Customer which are the subject of the Invoice or Payment Application, but only to the extent of the Payment Amount or such portion of the Payment Amount as the undersigned is actually paid, and does not cover any retention withheld, any items, modifications or changes pending approval, disputed items and claims, or items furnished that are not paid. The undersigned warrants that he or she either has already paid or will use the money received from this progress payment promptly to pay in full all laborers, subcontractors, materialmen and suppliers for all work, materials or equipment that are the subject of this waiver and release.
Dated:...................................................
.......................................................
(Company Name)
By:................................................
Its:.................................................
(Each unconditional waiver and release must contain the following language, in type at least as large as the largest type otherwise on the document:)
Notice: This document waives rights unconditionally and states that you have been paid for giving up those rights. This document is enforceable against you if you sign it to the extent of the Payment Amount or the amount received. If you have not been paid, use a conditional release form.
(c) Where the lien claimant is required to execute a waiver and release in exchange for or to induce payment of a final billing and the lien claimant is not paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release must be in the following form:
CONDITIONAL WAIVER AND RELEASE
UPON FINAL PAYMENT
Property Name:..........................................................................................................................
Property Location:.....................................................................................................................
Undersigned’s Customer:..........................................................................................................
Invoice/Payment Application Number:.................................................................................
Payment Amount:.....................................................................................................................
Payment Period:.........................................................................................................................
Amount of Disputed Claims:...................................................................................................
Upon receipt by the undersigned of a check in the above-referenced Payment Amount payable to the undersigned, and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release and the undersigned shall be deemed to waive any notice of lien, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to payment rights that the undersigned has on the above-described Property to the following extent:
This release covers the final payment to the undersigned for all work, materials or equipment furnished by the undersigned to the Property or to the Undersigned’s Customer and does not cover payment for Disputed Claims, if any. Before any recipient of this document relies on it, the recipient should verify evidence of payment to the undersigned. The undersigned warrants that he or she either has already paid or will use the money received from the final payment promptly to pay in full all laborers, subcontractors, materialmen and suppliers for all work, materials or equipment that are the subject of this waiver and release.
Dated:...................................................
.......................................................
(Company Name)
By:................................................
Its:.................................................
(d) Where the lien claimant has been paid the final billing, the waiver and release must be in the following form:
UNCONDITIONAL WAIVER AND RELEASE
UPON FINAL PAYMENT
Property Name:..........................................................................................................................
Property Location:.....................................................................................................................
Undersigned’s Customer:..........................................................................................................
Invoice/Payment Application Number:.................................................................................
Payment Amount:.....................................................................................................................
Amount of Disputed Claims:...................................................................................................
The undersigned has been paid in full for all work, materials and equipment furnished to the Customer for the above-described Property and does hereby waive and release any notice of lien, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to payment rights that the undersigned has on the above-described Property, except for the payment of Disputed Claims, if any, noted above. The undersigned warrants that he or she either has already paid or will use the money received from this final payment promptly to pay in full all laborers, subcontractors, materialmen and suppliers for all work, materials and equipment that are the subject of this waiver and release.
Dated:...................................................
.......................................................
(Company Name)
By:................................................
Its:.................................................
(Each unconditional waiver and release must contain the following language, in type at least as large as the largest type otherwise on the document:)
Notice: This document waives rights unconditionally and states that you have been paid for giving up those rights. This document is enforceable against you if you sign it, even if you have not been paid. If you have not been paid, use a conditional release form.
(e) Notwithstanding any language in any waiver and release form set forth in this section, if the payment given in exchange for any waiver and release of lien is made by check, draft or other such negotiable instrument, and the same fails to clear the bank on which it is drawn for any reason, then the waiver and release shall be deemed null, void and of no legal effect whatsoever and all liens, lien rights, bond rights, contract rights or any other right to recover payment afforded to the lien claimant in law or equity will not be affected by the lien claimant’s execution of the waiver and release.
(Added to NRS by 2003, 2591; A 2005, 1914)