Thus, if a contractor gives an owner a waiver and release of lien upon final payment dated June 15, but does more billable work as of June 18, then the lien rights for the work done after June 15 are not waived.
One consequence of giving a statutory waiver and release of lien upon final payment is that the owner is not obliged to serve a notice of termination of notice of commencement on the lienor who has given the waiver and release of lien upon final payment.
The lien waiver or release has generally been treated as a contract, the terms of which the parties are free to negotiate.(23) Section 713.20 has been significantly amended, however, to limit the permissible demands which can be made in regard to the form and content of the waiver and release of lien to be furnished at the time of issuing a progress payment or final payment.(24) The amendments to [sections] 713.20(4) now do away with the designation of "partial release of lien" and, instead, have adopted the term "wavier and release of lien upon progress payment." In addition, the statute now prescribes a form to be used for both "waiver and release upon progress payment" and "waiver and release of lien upon final payment."(25)
It is significant to note that pursuant to the amended statute, "a person may not require a lienor to furnish a waiver or release of lien that is different from the forms in subsection (4) or subsection (5) (of section 713.20)."(26) In addition, a lienor who furnishes a waiver and release of lien in exchange for a check may now condition the waiver and release upon the actual payment of the check.(27) Prior to the adoption of the 1996 amendments, an owner, general contractor, or other person making a progress or final payment was under no obligation to accept a conditional release of lien at the time of issuance of a progress or final payment.
It should be noted that the new form (for waiver and release of lien upon progress payment) is not a model of clarity.
In the past, when a release has been made conditional upon the actual receipt of payment by the releasor, it has been recognized that the conditional language burdens the person making payment and relying upon the release with the task of verifying that the condition of payment has been performed before the release can be relied upon.(31) The use of conditional waiver and release of lien forms will undoubtedly increase the need for the use of joint checks in the processing of construction payment applications.(32)
In fact, [sections] 713.20(8), as amended, specifically provides that "a lien waiver or lien release that is not substantially similar to the forms in subsections (4) and (5) is enforceable in accordance with the terms of the lien waiver or lien release." Accordingly, notwithstanding the mandatory forms for waiver and release of lien, it appears as if the use of alternative forms is still contemplated under the statute.
Seller, Healthcare and Family Services; buyer, Dorothy Madden; Release of Lien
; Lots 5 & 6 Blk 2 H M Beans Addn Village of Ridg
While addressing participants of the AICPA's October 2009 National CPA/IRS Tax Issues Meeting, Olson noted that these effects can be long term if a subsequently paid lien is accompanied by a lien release but is not also accompanied by a lien withdrawal, because credit agencies retain information on the existence and release of liens
for years after the release but erase information when a lien is withdrawn.
Notices should include the statutory provisions and procedures on release of liens
or relating to levy and sale of property, and should also include alternatives that may prevent further levies (such as an installment agreement).