Hawaii lien waiver: no statute voids one, and no lien attaches without a judge
Part II of chapter 507 is the whole of Hawaii's mechanics lien law, nine sections from 507-41 to 507-49, and not one of them says anything about waiving a lien. No section voids an advance waiver, prescribes wording or ties a release to a payment. What Hawaii does instead is harder than any waiver rule: your lien does not exist until a circuit court judge holds a hearing and orders it to attach, and the clock to get in front of that judge is forty five days.
No section of HRS chapter 507 part II declares a lien waiver void as against public policy, prescribes what one must contain, or requires that it follow payment. A Hawaii lien waiver is an ordinary contract, and an unconditional one releases the lien on signature whether or not the payment it refers to ever clears.
Read the law: Hawaii Revised Statutes section 507-43capitol.hawaii.gov
HRS 507-43(a), the sentence that makes Hawaii differentFill it in online Type your details in and download it already filled in.The lien shall not attach to the property until the court finds probable cause exists and so orders. No such order shall be entered before the Application and Notice have been served on the party contracting for the improvement, the general contractor and the owner of the property, and they were given an opportunity to appear at the hearing.
Everywhere else a lien is a document you record. In Hawaii it is a court order you have to win. You file an Application For A Lien and a Notice Of Lien in the circuit court, serve them, and appear on a return day between three and ten days later, where the owner and the general are entitled to turn up and argue about the amount. Nothing attaches until the judge says so.
Download a blank Hawaii lien waiver
Hawaii prescribes no statutory waiver wording, so this is the general conditional waiver on progress payment, the form that fits most draws. Fill in the amount and the through date rather than leaving them blank, because no section of chapter 507 limits a waiver that does not limit itself. Print it and fill it in by hand, or use the builder below and get it back already filled in.
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Nine sections, and the word waiver is in none of them
507-41 definitions, 507-42 when allowed, 507-43 filing notice and contents, 507-44 record in circuit courts, 507-45 discharge of lien, 507-46 priority and satisfaction, 507-47 demand and enforcement, 507-48 owner may retain amount due, 507-49 exceptions. That is the entire mechanics and materialman's lien law of Hawaii, and the words waive and waiver do not appear in the text of any of them.
This matters because 507-42 is widely quoted online as the section that voids waivers signed before work begins. Read 507-42 and it is nothing of the kind. It is the section that creates the lien: any person or association of persons furnishing labor or material in the improvement of real property has a lien on the improvement and on the owner's interest in the land, for the price agreed to be paid, or for the fair and reasonable value where the price exceeds the value or none was agreed. Its second paragraph deals with lessors and vendors, and it strikes down forfeiture clauses aimed at a lessee who lets a lien be filed. There is no anti waiver sentence in it.
The nearest the chapter's own annotations come to the subject is a 1949 case note saying a demand may be waived, which is about the demand that has to precede an enforcement action, not about your lien rights. So a Hawaii waiver is read as a contract. An unconditional release does what it says on the day it is signed.
Forty five days, counted from a notice in the newspaper
507-43(b) gives the deadline: the Application and Notice must be filed not later than forty five days after the date of completion of the improvement against which it is filed. Forty five days is short, and the hard part is knowing when it started.
507-43(f) defines the date of completion, and it is not the day the job finished. It is the time when the owner or the general contractor completes publication of a notice that the improvement has been completed or abandoned and files an affidavit of publication with a copy of the notice in the office of the clerk of the circuit court. The notice runs twice, seven days apart, in a newspaper of general circulation in the county. It is not effective for any purpose unless the improvement was substantially complete or actually abandoned first, and a contractor may not publish it until he has made written demand on the owner and the owner has failed to publish within five days.
507-43(g) is the backstop. If no valid notice of completion is published and filed within one year after actual completion or abandonment, the date of completion is deemed to be one year after actual completion or abandonment. So on a job where nobody publishes anything, the window closes at one year and forty five days. On a job where the owner publishes the week you leave, it closes forty five days later and you may never see the newspaper. Watch for the publication rather than waiting to be told.
One more trap for registered land. Where title is in the land court, 507-43(b) requires the lienor to file a certified copy of the Order Directing Lien To Attach with the assistant registrar within seven days of its entry to preserve rights against later purchasers and encumbrancers. Winning the hearing is not the end of the paperwork.
Three months to sue, and a demand you have to make first
507-43(e) is the second clock. The lien expires three months after the entry of the Order Directing Lien to Attach unless proceedings are commenced within that time to collect the amount due by enforcing it. The forty five days gets you a lien. The three months is how long you have to use it.
507-47 sets out the enforcement, and it opens with a condition people miss. After demand and refusal of the amount due, or upon neglect to pay on demand, the lien may be enforced by action filed in the circuit court. Hawaii's courts have held for a century that the demand is a condition precedent that has to be alleged and proved. The section lets you build it in: the demand may be included in the Application and Notice, and when it is, no separate demand on anybody else is needed. Include it.
That section also decides who gets what. If the property or the foreclosure proceeds do not cover every lien, then after the wage claims that take priority under 507-46 the rest is divided pro rata among the liens according to their principal amounts, without regard to the order in which the Applications and Notices were filed or the actions commenced. Filing first buys you nothing against other lienors in Hawaii, which is another reason the fight is about the amount rather than the queue.
507-46 fixes priority against everyone else instead. The lien relates back to and takes effect from the visible commencement of operations for the improvement, and outranks everything except government liens and mortgages, liens or judgments recorded before that moment. A construction mortgage recorded before the date of completion gets priority to the extent its money actually paid for the improvement, but only if the mortgage recites that purpose, and good faith payments to the general contractor for it are presumed to have been used for it.
The two exits the other side has
507-45 is the bond off. The owner, lessee, principal contractor or an intermediate subcontractor may discharge the lien at any time by filing cash or a bond for twice the amount claimed with the clerk of the circuit court, or with the assistant registrar for registered land, conditioned to pay whatever judgment the claimant obtains. The lien comes off the property and the claim moves to the money, which is usually good news: twice the claim in cash beats a lien on a house nobody is selling.
507-48 runs the other way and is the quiet leverage in the chapter. Whenever the work or material for which a lien is filed was furnished to a contractor, the owner may retain from the amount payable to that contractor enough to cover the amount due or to become due to the person who filed the lien. Once your Application is on file the owner has a statutory reason to stop paying your general, which is usually what produces the check.
507-47 also gives the owner a route that catches contractors who are already spending the money. An owner whose property has been liened may file a third party action against a licensed contractor the owner has already paid for the improvements, under section 444-28(g). And the court in a lien foreclosure has the powers of a court of equity, may order a writ of attachment or execution against another party's property where the claim rests on a contract, and may apportion attorneys fees between the parties as it sees equitable.
What to do about it on a Hawaii job
Check the license before the lien, because 507-49 can end the argument before it starts. No general contractor, subcontractor or sub subcontractor required to be licensed under chapter 444 has lien rights unless it was licensed when the improvements were made, and a licensed sub loses lien rights too if the work was subcontracted to it by someone who was required to be licensed and was not. On dwellings there is a further cut: no lien for materials furnished to an unlicensed general or subcontractor, or where the supplier extended credit unreasonably.
If you contract with a homeowner, do the 444-25.5 disclosure before or at signing, in the written contract. Hawaii's appellate courts have held that failing to give the lien disclosure notices required by 444-25.5(a) is an unfair or deceptive practice that renders the contract void and unenforceable under section 480-12, and that a contractor in that position is not entitled to a lien under 507-42 at all. That is a paperwork failure that costs the whole claim.
Sign conditional, never unconditional, until the money has cleared, and write the amount and the through date onto the form. No section of part II will narrow a release that does not narrow itself, and no section will read a payment condition into one that says unconditional at the top.
Then diary two dates and one event. Watch for the notice of completion being published, because forty five days runs from that publication and filing rather than from your last day on site. Put the Application and Notice in the circuit court inside that window with the demand written into it. And once the Order Directing Lien To Attach is entered, count three months to file the enforcement action, plus seven days to the land court registrar if the title is registered.
Which of the four to sign on a Hawaii job
With no statute to fall back on, the form is the entire protection. A conditional waiver ties the release to the payment clearing. An unconditional one gives it up on the day you sign, and in a state where the lien takes a court order to create, giving one up by signature is the cheapest mistake available.
Questions people ask
Is a Hawaii lien waiver signed before payment valid?
Yes, as far as the statutes go. Chapter 507 part II contains no section voiding an advance waiver, no prescribed wording and no requirement that a waiver follow payment, so a Hawaii lien waiver is enforced as an ordinary contract. An unconditional one takes effect on signature whether or not the payment arrives, which is why the conditional form is the one to use.
Does HRS 507-42 void lien waivers signed before work starts?
No. That claim circulates widely but it is not in the statute. Section 507-42 is the section that creates the lien for any person furnishing labor or material in the improvement of real property, and its second paragraph deals with lessors, vendors and forfeiture clauses aimed at lessees. It contains no anti waiver sentence, and neither does any other section of part II.
How do I file a Hawaii mechanics lien?
You apply to a judge. Under 507-43 you file an Application For A Lien with a written Notice Of Lien in the circuit court for the circuit where the property is, serve them on the owner, anyone with an interest and whoever contracted for the improvement, and appear on a return day set three to ten days later. The lien does not attach until the court finds probable cause and orders it. The Application must be filed within forty five days of the date of completion.
How long does a Hawaii mechanics lien last?
Three months from the entry of the Order Directing Lien to Attach, under 507-43(e), unless proceedings are commenced inside that time to collect the amount due. The enforcement action goes to the circuit court under 507-47, and a demand for the amount due has to have been made first, which is why the demand is usually written into the Application itself.
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 Hawaii Revised Statutes section 507-43 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.