For Industry Professionals, Managers, Trades & Suppliers
J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
JURIS DOCTOR, B. ARCHITECTURE, B.F.A.
17000 St. Clair Avenue . Cleveland, Ohio 44110-2535
Tel.: (216) 531-5310 . Fax: (888) 833-5860 . E-Mail: www.Normstark@aol.com
In Florida . 6500 Midnight Pass Rd. #105 . Sarasota, FL 34242 . (941) 349-2061.
Mechanics' Liens and Waivers of Lien
Perfection of a valid Mechanics' Lien is a necessary prerequisite to assertion of the right to be paid. At least, one
cannot credibly proceed to trial without it.
Many trades, persons and businesses affected should have previously noted and taken advantage of the Mechanics' Lien
"Prompt Payment Act" provisions, which mandate that all contractors, subcontractors and materials suppliers must pay their
subcontractors, suppliers and laborers within 10 days after receipt of funds. After 10 days, improperly withheld funds
begin to earn interest at the rate of 18% per annum. In addition, after 30 days, the lower tier contractor or supplier may
file suit and, upon judgment, may also obtain attorney's fees. Importantly, this right to interest and attorney's fees
cannot be waived by contract or otherwise!
An affidavit to obtain a mechanic's lien must be filed within 75 (calendar) days after the contractor or materials supplier
last furnished or provided services or materials. Other important changes now require the filing (recording) of Notice of
Commencement ("NOC") by the Owner, or General Contractor. Also required is the service of a Notice of Furnishing ("NOF")
by each contractor, subcontractor, or materials supplier, when each first performs work or supplied materials. Timely
service of the Notice of Furnishing on all parties is a mandatory prerequisite to obtaining a valid lien for all work and
materials provided on a construction project!
Having perfected a valid lien, by timely recording the Affidavit and serving it on the proper parties timely, should now
lead to speedy resolution by offer of payment in exchange for a signed Waiver of Mechanics' Lien.
WARNING: DON"T SIGN SUCH "STANDARD" LIEN WAIVER DOCUMENT WITHOUT LEGAL COUNSEL!!!
Among the many reasons for not executing such "ordinary" lien waiver is a subsequent denial or failure of payment.
Additionally, the incentive to pay fully and timely by the debtor entity is gone.
A far better resolution may be obtained by executing a Conditional Waiver of Lien which provides that upon the condition
of payment of the full amount due, the waiver is valid; otherwise, it isn't worth the paper on which it was written and
is of no legal effect.
The following form is suggested (first filling in the blanks):
WAIVER OF LIEN
To all whom it may concern:
In consideration of the sum of ________________Dollars, ($_______), and other valuable consideration to be paid, and
specifically conditioned upon such payment timely and fully, the undersigned does hereby waive, release and relinquish any
and all liens or claims for funds,, or right to lien or claim, for labor and/or materials, fuel and/or machinery, or all
of them, furnished to date hereof, for the premises known and described as: (Street address, City, County, State ,Zip)______________________,
County Auditor's Permanent Parcel No.: ____ / _____ / ________.
Witness my / our hand and seal given this ___ day of _______, 2001, at (City)_______________, Ohio.
(Signature) ______________________, for (Firm, Entity, or Trade)____., by and through its Authorized (Director, Officer,
Manager, Agent or Attorney).
In conclusion, the Lien Claimant, having performed fully as agreed, now has the right to (insist on) being paid, and should
take every precaution toward preserving and furthering that goal, prudently.
A government which robs Peter to pay Paul can always depend on the support of Paul.
George Bernard Shaw
AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered
Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of
Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme
Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with
additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness
(Forensic Architect). His office is in Cleveland, Ohio.