"Waiver" is a legal term which means giving up a right. A waiver can be written or oral. It can also be expressed by a formal agreement or implied through conduct of the parties. When discussing mechanic's liens, a waiver refers to a written document granted by a lien claimant to a property owner. This document usually confirms a partial or final payment and states that the lien claimant is waiving a right to claim a lien for the partial or full amount. Waivers help ease feelings of distrust between parties dealing at arms-length and give peace of mind for the laborer that he or she will get paid and for the property owner that his or her property won't be burdened by any mechanic's liens.

In Tennessee, lien waivers are governed under 66-11-124 of the Tennessee Property Code. Lien waivers in Tennessee must be explicit and are never implied. The acceptance by the lienor of a note or notes for all or any part of the amount of the lienor's claim shall not constitute a waiver of the lienor's lien, unless expressly so agreed in writing, nor shall it in any way affect the period for serving or recording the notice of lien under this chapter. Tenn. Prop. Code 66-11-124(a). Further, any contract term that purports to waive any right of lien under this chapter is void and unenforceable as against the public policy of the state. Tenn. Prop. Code 66-11-124(b). In fact, if a contractor solicits any person to sign a contract requiring the person to waive a right of lien, the person shall notify the state board for licensing contractors of that fact. Tenn. Prop. Code 66-11-124(b)(2)(A). Upon receiving the information, the executive director of the board shall notify the contractor within a reasonable time after receiving the information that the contract is against the public policy of this state and in violation of this section.

Use a partial lien waiver when a progress payment is made in exchange for the release of a portion of the contractor's lien rights. For instance, it the entire contract is for $100,000 and the owner makes a $10,000 progress payment, a partial waiver is appropriate. This allows the responsible party pay down an outstanding balance while the contractor retains some protection on the remainder.

A valid waiver is in the form of an affidavit (sworn statement). It identifies the parties, the location of the work, relevant dates and amounts paid, and any other information necessary for the specific situation. Record the completed and notarized document in the records of the county where the property is situated.

This article is provided for informational purposes only and should not be considered legal advice or relied upon as any substitute for speaking with an attorney. Please consult a Tennessee attorney familiar with construction law for any issues regarding mechanic's liens.

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