Mississippi lien waiver forms: which one to use and when

The Mississippi forms

Section 85-7-419 says the interim and final waivers “shall substantially follow” these forms. A blank completed wrongly doesn't invalidate the form “if the subject matter of the release reasonably may be determined.” And a right to claim a lien or a bond claim “may not be waived in advance of furnishing of labor, services or materials”; an advance waiver is “null, void and unenforceable.”

The notice that has to be on the form

Both waiver forms carry the same notice, and leaving it off ruins the waiver:

When the waiver takes effect

Once signed, a waiver is “binding against the claimant for all purposes, subject only to payment in full of the amount set forth in the waiver and release.” Under § 85-7-419(5)(b), the amount is conclusively deemed paid in full on the earliest of:

1. Actual receipt of the funds.
2. Your signing a separate written acknowledgment of payment in full.
3. Sixty days after you signed the waiver, unless before then you file an affidavit of nonpayment in the county where the property is, using substantially the statutory form, and send a true copy to the owner the way § 85-7-405 requires a claim of lien to be sent.

The statute's 60-day rule names the affidavit; the form's notice also mentions a claim of lien. If you haven't been paid, the affidavit is the step the statute spells out, so file it. Filing suspends the waiver until you're paid in full. Once you are, you must sign a recordable affidavit of payment on request, which voids the affidavit of nonpayment when recorded. None of this shortens your time to file a claim of lien.

Interim vs final

• The interim form waives liens and bond rights “through the date of” a date you write in, “excepting those rights and liens that the mechanic and/or materialman might have in any retained amounts.”
• The final form waives all liens and bond rights for labor or materials you furnished to or for that contractor on the property. It has no exception for retainage or disputed work, so hold it until every dollar is in.
• Neither form is labeled conditional. Both say they release rights “upon the receipt of the sum of” a stated amount, but the 60-day rule makes them effective anyway if you don't act.

Signing: these forms are sworn

Unlike most states' waivers, Mississippi's forms end with a jurat: signature, “BY” with the printed name, “ITS” with the printed title, and “SWORN TO AND SUBSCRIBED BEFORE ME” with a notary public's signature. The affidavit of nonpayment is sworn the same way, and within two days of filing it the form says you must send a copy to the owner by registered or certified mail or statutory overnight delivery.

An electronic signature on its own doesn't replace the notary. Mississippi's Uniform Electronic Transactions Act lets an electronic notarization count, if the notary's electronic signature and the required information are attached to the record (section 11 of the 2001 act), and the federal ESIGN Act says the same. Whether a given notary can notarize electronically or remotely depends on their commission, so ask before you rely on it. See Mississippi's e-signature law.

Common Mississippi mistakes

• Treating “upon the receipt of” as protection. After 60 days, an unpaid waiver is deemed paid unless you've filed the affidavit.
• Not calendaring the 60 days. Track the date you signed each waiver and chase payment well before the deadline.
• A waiver with no notary. The statutory form is sworn, so a waiver without the jurat isn't substantially the form.
• Forgetting to send the affidavit to the owner. Filing isn't enough; the copy has to go out too.
• Signing the final form with retainage outstanding. It releases everything for that contractor on the property.

Sending Mississippi waivers with SignMaster

SignMaster doesn't notarize documents, so plan the notary step. It's still the easiest way to get a correctly filled form in front of the claimant and back to you.

1. 1

   Build the forms with the notice

   Type the interim and final forms from § 85-7-433, including the jurat and the 60-day notice, and upload each with New template.

2. 2

   Pre-fill what you know

   Add text fields for contractor, materials or labor, project, city, county, owner, property description, amount and through date, and fill them in before sending so the claimant only checks them.

3. 3

   Let the claimant sign before a notary

   On the signing page the claimant can choose Print and sign instead, sign in front of a notary, and upload the notarized pages. They're added to the signed PDF and the certificate records that it was signed on paper.

4. 4

   Watch the clock

   The certificate of completion records when each waiver came back. Match it to your payments so nobody's 60 days run out unnoticed.