Norman Brown, IV
It is increasingly important that all contractors and subcontractors carefully read the language of these “partial” waivers. Indeed, you should not be afraid to mark-up these documents to ensure that you are fully protecting your rights. All language that goes beyond waiving liens on work actually paid, or certifying that the contractor or subcontractor has paid its subcontractors and suppliers amounts actually received on account of their work, should be deleted before signing. Also, care must be taken not to waive lien rights or claims on work not paid for in the current requisition, including retainage, extra work and any claims, whether billed or unbilled.
When waiver of lien forms are included as an attachment to the form of contract to be executed, the provisions of the lien waivers, partial and final, must be addressed and amended during the pre-contract stage. If you sign a contract that includes a specific waiver of lien form, you may be committed to providing that form of waiver as a condition of obtaining payment, even if it includes provisions that are prejudicial. The remedy is to strike the objectionable provisions before signing your contract.
If you find yourself in the position of having already signed a broadly-written “partial” lien waiver without having understood its full effect, don’t panic. Massachusetts courts have occasionally looked beyond the four corners of a waiver to protect the rights of those who had no expectation of surrendering claims. In these cases the courts have tried to determine the true intention of the parties by considering “extrinsic” evidence to determine, amongst other things, whether the signing party received any value – over and above the undisputed payment – for allegedly having waived its rights to pursue future and/or disputed monies. However, it is best to avoid this fight by modifying your “partial” lien waiver at the appropriate time. 
In sum, “partial” lien waivers must be read carefully and revised accordingly since they could impact your right to recover future monies due under your contract.
Norman Brown IV, Esq. is an associate at the law firm of Corwin & Corwin LLP.
