Arkansas lien waiver: the only waiver sentence is aimed at the owner
Arkansas mentions lien waivers exactly once in its lien chapter, and it is not a rule about yours. It is a line inside a boldface capital letter notice that a residential contractor is required by law to hand the homeowner, telling the homeowner to demand lien waivers before paying him in full. Miss the notice and you lose the lien, which is a harder consequence than any waiver carries here.
No Arkansas statute voids a lien waiver signed before payment. The twenty seven sections of Title 18, Chapter 44, Subchapter 1 contain no waiver provision, and the other four subchapters are wells and mines, trucking and teaming, railroads and bonds. What Arkansas does regulate is notice. Under Ark. Code 18-44-115 a residential contractor who fails to give the prescribed notice may not avail himself of the lien at all.
Read the law: Arkansas Code section 18-44-115codes.findlaw.com
Ark. Code 18-44-115, the only lien waiver sentence in the chapterFill it in online Type your details in and download it already filled in.I MAY ALSO REQUIRE THE CONTRACTOR TO PRESENT LIEN WAIVERS BY ALL SUPPLIERS AND SERVICE PROVIDERS, STATING THAT THEY HAVE BEEN PAID IN FULL FOR SUPPLIES AND SERVICES PROVIDED UNDER THE CONTRACT, BEFORE I PAY THE CONTRACTOR IN FULL.
That is the homeowner speaking, in a notice the residential contractor is required to deliver before the job. Arkansas has no section telling you when a waiver you sign is void, and one section telling the owner to collect waivers from you. The capital letters are the statute's, not ours: the notice must be conspicuous, in boldface type, and worded exactly as stated in all capital letters.
Download a blank Arkansas lien waiver
Arkansas prescribes no statutory wording, so this is the general conditional waiver on progress payment, the form that fits most draws. Print it and fill it in by hand, or use the builder below and get it back already filled in.
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Where Arkansas says lien waiver, and who it is talking to
Ark. Code 18-44-115 prints a notice and requires a residential contractor to put it in front of the owner. The notice is written in the owner's voice and it walks him through the whole problem: every contractor, subcontractor, laborer, supplier, architect, engineer, surveyor, appraiser, landscaper, abstractor or title insurance agent is entitled to a lien if not paid in full, even though the full contract price may have been paid to the contractor, and that lien can be enforced by the sale of the property.
Then it tells him what to do about it. Ask the contractor for a true and correct full list of all suppliers and service providers. Check with them. Require lien waivers stating everyone has been paid in full before paying the contractor in full. Pay by joint check if somebody has not been paid.
So the state of Arkansas hands the homeowner the lien waiver playbook in capital letters, as a condition of the contractor keeping his own lien. It never gets round to telling that contractor what happens when he signs one too early, because there is no section on the subject.
The notice decides whether you have a lien at all
No lien on residential real estate containing four or fewer units may be acquired under the subchapter unless the owner has received a copy of the notice, by personal delivery or by certified mail. Four or fewer units is most of a home service contractor's year, so this is the ordinary case rather than the exception.
The consequence is written plainly. If a residential contractor fails to give the notice required under this subsection, then the residential contractor may not avail himself or herself of the benefit of the lien provided for in this subchapter. Failure is also an offense carrying a fine not exceeding one thousand dollars.
The form of it matters too. The notice must be conspicuous, set out in boldface type and worded exactly as stated in all capital letters. A retyped, tidied up, sentence case version of a statutory notice is the kind of thing that gets argued about after the money has already gone missing.
What the chapter does not contain
Subchapter 1 of Chapter 44 is the construction lien law and it runs twenty seven sections, from the lien on buildings, land or boats at 18-44-101 through jointly owned property at 18-44-135. Along the way it covers leased land, drain pipe and tile, the lien of an architect or surveyor, the definition of owner, subcontractors, a refusal to list the parties doing the work, priority over prior liens, assignment, notice and service, the notice to owner, filing, bonding, limitations, pleadings, parties, judgment, attorney's fees and the duty to enter satisfaction.
Not one of those sections is about waiving the lien. The other four subchapters of Chapter 44 do not help either, because they are wells, mines and quarries, trucking and teaming contractors for wells and mines, railroads, and bonds.
That is the whole search, and it is worth doing rather than assuming, because in six other states the anti waiver rule sits outside the lien chapter entirely. Arkansas has nothing of the kind in the lien chapter and nothing pointing into it from outside.
What to do about it on an Arkansas job
Sign conditional, never unconditional, until the money has cleared your bank. Where no statute voids a bad waiver the form is the entire protection, and a conditional waiver that takes effect when the payment clears is a different document from one that takes effect on signature.
Deliver the 18-44-115 notice before you start any residential job of four units or fewer, by personal delivery or certified mail, in boldface capital letters and worded exactly as the statute prints it. Keep the proof of delivery, because 18-44-117 requires an affidavit of notice attached to the lien account, sworn to compliance with the notice provisions, with copies of the notices and proof of service.
Then watch the clock, because it is short. The lien has to be filed within one hundred twenty days after the last of the work was done or the last of the materials furnished. A conditional waiver protects what you have; it does not file anything and it does not stop that count.
Which of the four to sign on an Arkansas job
Arkansas has no anti waiver statute, so the wording of the form is the whole of the protection. A conditional waiver ties the release to the payment clearing. An unconditional one releases on signature, paid or not, and there is no section in the chapter that will read a condition back into it later.
Questions people ask
Is an Arkansas lien waiver signed before payment valid?
Yes, as far as the Arkansas Code is concerned. No section of Title 18, Chapter 44 voids a waiver of lien rights signed in advance of payment, and none prescribes what a waiver must say. The only mention of lien waivers in the chapter is inside the notice a residential contractor must give the owner under 18-44-115, which advises the owner to collect them.
What is the Arkansas notice to owner, and what happens if I skip it?
It is a prescribed notice under Ark. Code 18-44-115 that a residential contractor must deliver to the owner of residential real estate containing four or fewer units, by personal delivery or certified mail. Skip it and the residential contractor may not avail himself of the benefit of the lien provided for in the subchapter, and the failure also carries a fine not exceeding one thousand dollars.
Can I retype the Arkansas notice to make it look better?
No. The statute says the notice shall be conspicuous, set out in boldface type and worded exactly as stated in all capital letters. The formatting is part of the requirement, and since 18-44-117 makes you swear an affidavit of compliance when you file the lien, a rewritten notice is a problem you will be asked about at the worst possible moment.
Does Arkansas prescribe a lien waiver form?
No. There is no statutory Arkansas waiver wording, so the words on the form are the whole of the agreement between you and whoever handed it to you. A conditional waiver on progress payment that names the amount, names the through date and states that it takes effect when the payment clears is effective on exactly those terms, because no Arkansas statute overrides them.
Working in another state? The general lien waiver forms page covers all four waiver types, and conditional vs unconditional lien waiver explains which of the two to sign and when.
This page quotes Arkansas Code section 18-44-115 and explains what it says. It is not legal advice, and a statute can be amended. Read the linked section before you rely on it.