North Carolina Conditional Lien Waiver on Progress Payment

A lien waiver is a document drafted by a potential lien claimant such as a contractor, subcontractor, materials provider, equipment lessor or other party to the construction project (the claimant) that states they have received payment and thereby waive any future lien rights to the owner's property. Simply put, waiving a lien means giving up the right to a future lien in exchange for the payment of the potential lien amount in full or part.

Lien waivers generally fall into two categories: conditional and unconditional. A conditional waiver is effective only upon the triggering of a specific event, such as the payment check clearing. An unconditional waiver is an absolute abandonment of the claimant's right to a future lien whether or not payment is ever made to the possible claimant. North Carolina does not provide for lien waivers by statute, although waivers are still permissible and will be recognized by a state court under the principles of contract law.

The Conditional Waiver upon Progress Payment offers the most protection for lien claimants because it states that if the claimant(s) have actually been paid to date (including no return or stopped payment checks) the waiver serves as effective proof against any lien claim on the property. The lien is "conditioned" on receiving payment and is only waived if the claimant actually receives the payment.

Waivers should identify the parties, location of the job or project, relevant dates, costs, and payments, and any other details as needed.

By filing the form, the lien claimant represents that he or she either has already paid or will use the money he or she receives from this progress payment in order to make prompt payment in full to all his or her laborers, subcontractors, materialmen and suppliers for all work, materials or equipment that are the subject of this waiver and release.

Lien waivers also allow property owners to shield the title to their property from the general contractor, material suppliers, and subcontractors involved with a project. With a lien release upon a progress payment, the property owner moves toward clear title and the ability to obtain financing or sell the property. Proper lien waivers can also protect the property owner from liens filed by the contractor's subcontractors, suppliers and laborers who might record a lien if they are not paid by the contractor.

This article is provided for informational purposes only and should not be relied upon as a substitute for the advice of a legal professional. Please contact an attorney with questions about using lien waivers, or for any other issues related to liens in North Carolina.