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George W. Wolff & Associates
505 Sansome St, Suite 1525
San Francisco, CA 94111
Phone: 415-788-1881
Fax: 415-788-0880
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Practice Areas

• Construction Defect Claims and Litigation
• Private Construction Contracts, Claims, and Disputes
• Real Estate Litigation
• Public Works Contracts and Government Construction Contracts
• Litigation Services
• Real Estate and Construction Arbitrator
• Business Counseling and Litigation
• Government Purchasing Contracts & Services Contracts
• Professional Licenses

Four Types of Statutory Mechanics Lien Waiver and Release Forms

1. Conditional Waiver and Release Upon Progress Payment
   • - Contractor and Subcontractors Submit with Progress Payment Application
2. Unconditional Waiver and Release Upon Progress Payment
   • Contractor and Subcontractors Submit After Receipt of Prior Progress PaymentM
3. Conditional Waiver and Release Upon Final Payment
   • Contractor and Subcontractors Submit with Final Payment Application
   • Be Careful to State and Include Amount of Disputed Claims Not Covered by Release
4. Unconditional Waiver and Release Upon Final Payment
   • Contractor and Subcontractors Do not Provide Unless Fully Paid for All Work

Scope of Waiver and Release Forms

Only the above mentioned statutory forms of Waiver and Release Forms are permitted under the law.

Mechanic's lien, stop notice and bond rightscannotbe waived by provisions contained in a contract.

Waiver and Release Formsdo NOTrelease Breach of Contract etc claims, or claims for:

• Rescission
• Abandonment
• Breach of Contract
• Fraud Claims
• Tort Claims

Waiver and Release Forms - Extra Work claims

• If there was an Executed Change Order as of date of release - Claim is Released
• If there were unsigned Oral Change Orders as of date of release - Not Released
• BE VERY CAREFUL IN EXECUTING THESE FORMS

N.B. The contents of this Article do not constitute legal advice or create an attorney-client relationship, and you may not rely on it without seeking legal advice regarding your particular situation and contract from a competent construction attorney. Please also note that statutes and case law are frequently changing and these materials may become outdated. For further information on this topic and how the current law may apply to your particular project and issues, Contact Us via email or phone (415)788-1881.

California Civil Code § 3262

§ 3262. Prohibition against contractual provision for waiver of claims or other liens of other persons; Requirements and form of written waiver and release

1. Neither the owner nor original contractor by any term of a contract, or otherwise, shall waive, affect, or impair the claims and liens of other persons whether with or without notice except by their written consent, and any term of the contract to that effect shall be null and void. Any written consent given by any claimant pursuant to this subdivision shall be null, void, and unenforceable unless and until the claimant executes and delivers a waiver and release. That waiver and release shall be binding and effective to release the owner, construction lender, and surety on a payment bond from claims and liens only if the waiver and release follows substantially one of the forms set forth in this section and is signed by the claimant or his or her authorized agent, and, in the case of a conditional release, there is evidence of payment to the claimant. Evidence of payment may be by the claimant's endorsement on a single or joint payee check that has been paid by the bank upon which it was drawn or by written acknowledgment of payment given by the claimant.
2. 1. No oral or written statement purporting to waive, release, impair, or otherwise adversely affect a claim is enforceable or creates any estoppel or impairment of a claim unless either:
      1. It is pursuant to a waiver and release prescribed in this section.
      2. The claimant had actually received payment in full for the claim.
   2. Nothing in this section precludes a stop notice claimant from reducing the amount of, or releasing in its entirety, a stop notice that has been served upon an owner. The reduction or release of a stop notice, which shall be in writing, may be served in a form other than the forms of release set forth in this section. Any reduction or release of a stop notice:
      1. Shall not preclude the service of a subsequent stop notice that is timely and proper.
      2. Shall release the owner from any obligation to withhold money on account of the stop notice, to the extent of the reduction or release.
      3. Shall be effective to release the claimant's right to enforce the stop notice, to the extent of the reduction or release.
      4. Shall not operate as a release of any right that the claimant may have, other than the claimant's right to enforce the stop notice, to the extent of the reduction or release.
3. 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 provided the accord and satisfaction or agreement and settlement make specific reference to the mechanic's lien, stop notice, or bond claims.
4. The waiver and release given by any claimant pursuant to this section shall be null, void, and unenforceable unless it follows substantially the following forms in the following circumstances:
   1. If the claimant is required to execute a waiver and release in exchange for, or in order to induce the payment of, a progress payment and the 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 shall follow substantially the following form:
      • CONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT
   2. If the claimant is required to execute a waiver and release in exchange for, or in order to induce payment of, a progress payment and the claimant asserts in the waiver it has, in fact, been paid the progress payment, the waiver and release shall follow substantially the following form:
      • UNCONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT
   3. If the claimant is required to execute a waiver and release in exchange for, or in order to induce the payment of, a final payment and the 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 shall follow substantially the following form:
      • CONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT
   4. If the claimant is required to execute a waiver and release in exchange for, or in order to induce payment of, a final payment and the claimant asserts in the waiver it has, in fact, been paid the final payment, the waiver and release shall follow substantially the following form:
      • UNCONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT

N.B. The contents of this Article do not constitute legal advice or create an attorney-client relationship, and you may not rely on it without seeking legal advice regarding your particular situation and contract from a competent construction attorney. Please also note that statutes and case law are frequently changing and these materials may become outdated. For further information on this topic and how the current law may apply to your particular project and issues, Contact Us via email or phone (415)788-1881.