On an Unconditional Progress release, in California, can two parties be listed on the “name of claimant” line?
rec’d a form filled out by our customer, Uncond. Progress release. They’ve filled out the form with their name and our name on the “Name of claimant” line, then on the “Name of customer” line, they’ve listed the General Contractor. I’ve not had this come up before,& I don’t think I should sign it?
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Chief Legal Officer zlien
California is one of the 12 states with statutorily mandated lien waiver forms, and the specific form required for use with respect to an Unconditional Waiver and Release on Progress Payment is set forth by § 8134 of the California Civil Code.
On the form, as you note, there is a space for the:
"Identifying Information Name of Claimant:______"; and
"Name of Customer:______"
Generally, the "name of claimant" section is the party signing the waiver (and waiving lien rights), and the "name of the customer" is the party who hired the claimant (and to whom the lien waiver is being provided).
Since lien waivers, especially unconditional waivers, can be dangerous and what the waiver says can sometimes be more important that what actually happens, it's worth examining the documents thoroughly, and not allowing a waiver to pass through that may negatively impact lien rights that aren't meant to be waived.
While parties are generally not allowed to waive the lien rights of other parties, it's not best practice to provide a lien waiver (especially an unconditional waiver) with a name of a party on it who is not waiving rights. There could be an argument as to the effectiveness of the waiver related to the "3rd party" but, if the waiver was signed by both the parties listed in the "claimant" lien, it would likely be sufficient to waive the lien rights of both parties in the amount and through the date stated on the waiver.
It's good to be careful, and to the extent that payment has not been made from above and it's not yet prudent to waive lien rights, it may be the best practice to keep the waiver from a single party as generally contemplated by the statue.