Lien Waivers and Affidavits

There are two basic types of lien waiver provisions that may by presented in a construction contract. The first and most onerous is the “no liens” contract. This type of contract waives the contractor’s right to file a mechanic’s lien. It is undetermined whether a lien waiver of this type could be construed against a party lacking privity with the contract purporting to waive these rights.

The second is a partial lien waiver, executed at the time a partial payment is made. This is common practice in construction trades as W. Va. specifically provides that payment to the contractor by the owner is not a defense to any subcontractor, laborer, or materialman’s lien. W. Va. Code 38-2-21.