Utah lien waiver forms: which one to use and when

Utah's statutory forms

Safe harbor, not a script

Utah's forms are optional wording with a guarantee attached. A waiver “meets the requirements of this section if it is in substantially the form provided” in subsection 4, and the forms themselves are introduced with “may be.” What isn't optional is subsection 2. A claimant's written consent that waives or limits lien rights is enforceable only if both of these are true:

1. The claimant, or its authorized agent, signs a waiver and release, or signs a restrictive endorsement on a check in substantially the statutory wording.
2. The claimant receives payment of the amount identified, including by joint payee check, and for a progress payment, only to the extent of that payment.

So a waiver for money that never arrives doesn't hold, whatever it's called. Using the statutory form simply removes any argument about whether your wording counts. Accord and satisfaction of a real dispute, or a settlement of a lawsuit or arbitration, still works if it's in a writing the claimant signs and specifically refers to the lien rights (subsection 5).

When the forms take effect

Both forms say they become effective to release the undersigned's rights “once: (1) the undersigned endorses a check in the above referenced Payment Amount payable to the undersigned; and (2) the check is paid by the depository institution on which it is drawn.” They release any notice of lien or right under Utah's construction lien chapter, and any bond right under Title 14 (Contractors' Bonds) or Section 63G-6a-1103, related to payment for the property.

Subsection 3 adds a hard backstop. If payment for a waiver is made by check and the check fails to clear for any reason, the waiver is void, and your liens, lien rights, bond rights and contract rights are untouched.

Progress vs final

• The progress form has header blanks for Property Name, Property Location, Undersigned's Customer, Invoice/Payment Application Number, Payment Amount and Payment Period. It covers the work in that invoice or pay application only to the extent of the Payment Amount.
• It doesn't cover “any retention withheld; any items, modifications, or changes pending approval; disputed items and claims; or items furnished or invoiced after the Payment Period.”
• The final form drops the Payment Period and applies to the final payment for all the work, materials and equipment you furnished. It has no exceptions line, so settle disputes first.
• Both forms include a warranty that you've paid, or will promptly pay, your laborers, subcontractors, materialmen and suppliers for the work covered.

The check endorsement option

Utah lets the payer skip the separate form by printing a restrictive endorsement on the check:

Whoever prepares the check circles “progress” or “final.” If neither is circled, it's treated as a progress payment (subsection 4(e)). Read the back of every check before you endorse it.

Signing electronically

The forms end with Dated, the company name, “By” and “Its.” Utah requires the claimant's or an authorized agent's signature and nothing more: no notary, no witness. Utah's Uniform Electronic Transactions Act says “If a law requires a signature, an electronic signature satisfies the law” (Utah Code § 46-4-201(4)), and the ESIGN Act agrees. See Utah's e-signature law.

Common Utah mistakes

• Asking subs for an unconditional waiver. Utah has no statutory one, and no waiver holds without payment.
• Endorsing a check without reading the back. An uncircled restrictive endorsement still counts as a progress waiver.
• A Payment Period that runs past the invoice. Items invoiced after it aren't covered, so keep the dates tight.
• Signing the final form with disputes open. It releases everything for the final payment.

Sending Utah waivers with SignMaster

1. 1

   Build both forms

   Type the progress and final forms from § 38-1a-802(4), titles included, and upload each with New template, with a Claimant signing role.

2. 2

   Map the header

   Property Name, Property Location, Undersigned's Customer, Invoice/Payment Application Number, Payment Amount and Payment Period become text, currency and date fields. Add Signature, Company and Date signed fields, and a text field for the title on the “Its” line.

3. 3

   Send with the invoice

   Because the form only takes effect when the check clears, it can go out with the pay application. Reminders and a sign-by date keep the draw on schedule.

4. 4

   Run a whole draw

   On paid plans, bulk send sends the progress form to every sub from a CSV, each with its own amount and payment period.