Massachusetts lien waiver forms: which one to use and when

The rule: promises not to lien are void

Section 32 starts by striking down any covenant, promise or agreement, in or connected to a construction contract, that tries to stop someone filing a notice of contract or enforcing a lien, or that subordinates lien rights to someone else's. Those terms are “against public policy and … void and unenforceable.” Then it lists four things the rule doesn't apply to:

1. Waivers given by a principal on a lien bond under section 12, in connection with an interim or final payment they've received.
2. Statements by people entitled to file documents under chapter 254 of the amounts due or paid to them.
3. Dissolutions of liens under section 10.
4. Partial waivers and subordinations given by people who have filed or recorded notices of contract under section 2, in the statutory form.

So Massachusetts has no statutory progress waiver for a sub or supplier, and no statutory final waiver. Waiver language you sign for a payment has to fit within those exceptions, which is why the wording of a non-statutory waiver matters more here than in most states. A Massachusetts construction attorney is the right person to check a form you didn't write.

The Partial Waiver and Subordination of Lien

The one statutory form is for someone who has recorded a notice of contract under section 2, which covers a written contract with the owner or someone acting for the owner. In practice that's usually the general contractor, signing for the construction lender with each requisition. It must be “substantially in the following form with no material deviation therefrom.” The heading names the county, the date, the application for payment number, the owner, the contractor and the lender or mortgagee, then a ten-line schedule:

On receipt of the stated payment, for an invoice, requisition or application dated on the form, the signer does two things. Under paragraph (a) it waives liens for work and materials furnished through the payment period, “except for retainage, unpaid agreed or pending change orders, and disputed claims as stated above.” Under paragraph (b) it subordinates its lien for those excepted amounts, and for later work other than retainage through the twenty-fifth day after the payment period ends, to the amount the lender actually advances through that day.

Signed under the penalties of perjury

The form ends “Signed under the penalties of perjury this ___ day of ___.” There's no notary block and no witness line, but the signer is personally vouching for the numbers in the schedule, so the person signing should be someone who knows them: an owner, officer or the project manager who prepared the requisition.

That signature can be electronic. Massachusetts adopted the Uniform Electronic Transactions Act as chapter 110G, and the federal ESIGN Act also gives electronic signatures legal effect. See Massachusetts e-signature law for what the act excludes.

Notice of contract comes first

The partial waiver exception only covers people who have filed or recorded a notice of contract under section 2. That notice goes in the registry of deeds for the county or district where the land lies, any time after the written contract is signed, and no later than the earliest of 60 days after a notice of substantial completion is recorded, 90 days after a notice of termination, or 90 days after the claimant last furnished labor or materials.

Common Massachusetts mistakes

• Assuming an out-of-state form works. A conditional or unconditional waiver copied from California or Texas isn't a Massachusetts statutory form, and § 32 decides whether it holds.
• Signing a subcontract clause that bars liens. It's void under § 32, but arguing that point costs time and money.
• Leaving lines 9 and 10 blank. Pending change orders and disputed claims are what the waiver keeps, so put the numbers in.
• Forgetting the subordination. Paragraph (b) puts your lien for the excepted amounts, and for work through day 25 after the payment period, behind the lender's advances.
• Treating the GC's waiver as covering the job. Subs and suppliers keep their own lien rights.

Sending the Massachusetts form with SignMaster

1. 1

   Build the form from § 32

   Type the Partial Waiver and Subordination of Lien word for word, with the ten-line schedule and both paragraphs, and upload it with New template.

2. 2

   Let the schedule add itself up

   Make lines 1, 2, 4, 5 and 7 currency fields, and lines 3, 6 and 8 calculated fields (line 1 plus 2, 4 less 5, 6 less 7), so the contractor's figures total as they type.

3. 3

   Send it with each requisition

   The lender or owner sends the template to the contractor, who fills in the schedule and signs. A sign-by date and automatic reminders keep it on time for the draw.

4. 4

   Keep the record with the draw

   The signed PDF comes with a certificate of completion showing who signed and when. File it with the requisition it covers.