January 01, 2009

What Have We Done to the Lien Waiver? Way Too Much (2009, 23:01)

What Have We Done to the Lien Waiver?
Way Too Much

Probate & Property Magazine: January/February 2009, Vol. 23, No. 1

By Susan L. McGreevy and Heath A. Hawk
Susan L. McGreevy is a partner and Heath A. Hawk an associate in the Kansas City, Missouri, office of Stinson Morrison Hecker LLP.

The concept of the mechanic’s lien is little known outside the construction industry and is further limited to certain industrialized nations. The concept is encountered every day, however, by the attorneys representing parties to a construction project—whether such parties be owners, lenders, title or escrow companies, contractors, subcontractors, or vendors. The original common law lien, “by which the workman was permitted to retain possession of the chattel, which had been increased in value by his labor and material,” has now been codified by statutory mechanics’ liens “in every State of the Union, in the provinces of Canada, and in the District of Columbia.” Mathews v. Myers, 145 S.E. 352, 353–54 ( Va. 1928) (citing Burks’ Pl. & Pr. § 430 (2d ed.)). Just as familiar is its corollary, the lien waiver or release. (For purposes of this article, no distinction will be made between the terms lien waiver and lien release although the difference in rights given up or “waived” in advance versus rights given up or “released” after they have accrued will be addressed below.) What started out as a simple means of providing evidence that payment had been received for improvements made, however, has come to be used as a tool for obtaining representations, warranties, disclaimers, and releases of rights far beyond any justifiable need.

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