New York lien waiver: void in advance, and the timing of the signature is the whole test
New York's rule is one sentence long and it opens with the words notwithstanding the provisions of any other law, which is the legislature saying that nothing else in the code gets to soften this. What makes a New York waiver good or worthless is when you signed it.
Any contract, agreement or understanding by which the right to file or enforce a lien under article two of the Lien Law is waived is void as against public policy and wholly unenforceable. A written waiver works only when it is executed and delivered at the same time as payment or after it.
Read the law: N.Y. Lien Law section 34codes.findlaw.com
N.Y. Lien Law section 34, word for wordFill it in online Type your details in and download it already filled in.Notwithstanding the provisions of any other law, any contract, agreement or understanding whereby the right to file or enforce any lien created under article two is waived, shall be void as against public policy and wholly unenforceable.
The section then permits a written waiver executed and delivered at the same time as or after payment to a contractor, subcontractor, material supplier or laborer, and permits a written agreement to subordinate, release or satisfy a lien made after a notice of lien has been filed.
Download a blank New York lien waiver
New York 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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The clause in the subcontract is already dead
Notwithstanding the provisions of any other law is unusually strong drafting. A waiver clause sitting in the subcontract you signed months ago, before a dollar moved, is void in New York whatever else the contract says about it.
That covers the clause a general contractor buries in the terms and conditions, the one in the purchase order, and the one in a change order. It is an agreement or understanding by which the right to file or enforce a lien is waived, and the section reaches all three words.
At the same time as payment is the phrase to hold on to
The exception is not after payment clears, and it is not before payment is promised. The statute permits a waiver executed and delivered at the same time as or after payment.
At the same time as payment is exactly the exchange a conditional waiver is built for. You hand the waiver across, the check comes back, and neither piece of paper is good without the other. Sign an unconditional waiver a week ahead of the draw and you are outside the exception.
In practice on a New York job: conditional at every draw, unconditional only once the check has actually cleared, and never anything at all as a condition of getting the work.
Subordination and release after a notice of lien is filed
The second carve out is for a written agreement to subordinate, release or satisfy a lien made after a notice of lien has been filed. That is settlement paperwork, not a waiver, and the statute leaves it alone.
The sequence matters. Once your notice of lien is on the record, you have something real to trade, and what you sign then is a bargain rather than a precondition. Before the notice is filed, you have nothing to trade and the statute knows it.
The notice of lien itself: New York prescribes the contents and never the form
There is no New York notice of lien to download on this site and that is not an omission. Lien Law section 9 is headed Contents of notice of lien and it does exactly that: it says the notice shall state, and then lists eight things. It prints no form, no blanks and no layout, so there is nothing to slice.
The eight are the name and residence of the lienor, with the business address, partners and principal place of business if you are a firm or a corporation; the name and address of your attorney if you have one; the name of the owner and the owner's interest as far as you know it; the name of whoever employed you or whoever you furnished materials to, or the person you contracted with if you are a contractor or subcontractor; the labor or materials and the agreed price or value; the amount unpaid; the time the first and last items of work were performed and materials furnished; and a description of the property sufficient for identification, with the street and number if it is in a city or village, and whether the property is improved or to be improved with a single family dwelling.
That last clause is not cosmetic. Whether the job is a single family dwelling changes the filing deadline in section 10 and takes away the right to extend the lien by filing in section 17, so the answer you give in the description is the answer that sets both clocks.
Two pieces of protection sit in the same section. A failure to state the name of the true owner or contractor, or a misdescription of the true owner, shall not affect the validity of the lien. And the notice must be verified by you or your agent, to the effect that the statements in it are true to your knowledge except as to matters stated to be alleged on information and belief. So a New York notice of lien is sworn paper, and the county clerk is not the one who checks it.
Eight months, thirty days, thirty-five days, one year
Section 10 sets the filing window. The notice may be filed at any time during the progress of the work and the furnishing of the materials, or within eight months after completion of the contract or the final performance of the work or the final furnishing of the materials, dating from the last item. Where the improvement is to real property improved or to be improved with a single family dwelling the eight months becomes four. Where the notice is for retainage it may be filed within ninety days after the date the retainage was due to be released.
It is filed in the clerk's office of the county where the property is situated, and if the property sits in two or more counties it is filed in each of them.
Then two service rules run together and both are easy to lose. Under section 11 you serve a copy on the owner within five days before or thirty days after filing, personally, by leaving it at the last known residence with a person of suitable age and discretion, by registered or certified mail, or by affixing it conspicuously on the property between nine in the forenoon and four in the afternoon. Under section 11-b, in the same window, you serve a copy by certified mail on whoever you were employed by or furnished materials to, and if your contract was with a subcontractor you serve the contractor as well.
THE THIRTY-FIVE DAY TRAP. Both sections carry the same sentence: failure to file proof of such a service with the county clerk within thirty-five days after the notice of lien is filed shall terminate the notice as a lien. Serving it is not enough. The proof has to go back to the clerk, and a lien that was filed correctly dies on day thirty-six without it. Section 11-b adds that a lienor who fails to serve the copy is liable for reasonable attorney fees, costs and expenses as determined by the court.
Section 17 then gives the lien one year from filing. It ends there unless you commence a foreclosure action and file a notice of pendency, or you file an extension with the same county clerk within the year. The extension is not available on a single family dwelling: that one can only be extended by an order of a court of record, and no court order can continue it more than a year at a time.
Section 39 is the reason to work the amount out before you sign rather than after. If the court finds that a lienor has wilfully exaggerated the amount claimed, the lien is declared void and no recovery is had on it, and that lienor has no right to file any other or further lien for the same claim.
Which of the four to sign on a New York job
The statute protects you from a waiver signed before the work or before the payment. It does not protect you from one worded too broadly, or handed over against a check that later bounces, so the conditional form is still the right default.
Questions people ask
Is a lien waiver signed before payment valid in New York?
No. N.Y. Lien Law section 34 makes any contract, agreement or understanding waiving the right to file or enforce a lien void as against public policy and wholly unenforceable. A waiver counts only when executed and delivered at the same time as payment or after it.
Can my New York subcontract require me to waive lien rights?
It can say so and the clause will not work. The section opens with notwithstanding the provisions of any other law and reaches any contract, agreement or understanding, which includes a clause inside the subcontract itself.
Can I sign a New York waiver at the same time as the check?
Yes, and that is the exception the statute names. A written waiver executed and delivered simultaneously with or after payment is permitted, which is precisely how a conditional waiver on progress payment is meant to be used.
Is subordinating a New York lien the same as waiving it?
No. The section permits a written agreement to subordinate, release or satisfy a lien made after a notice of lien has been filed. That is a settlement of a lien that already exists, not a waiver of one you have not yet claimed.
Is there an official New York notice of lien form?
No. Lien Law section 9 is headed Contents of notice of lien and lists the eight things the notice shall state. It prescribes no layout and prints no blanks, which is why there is no New York notice form on this site to fill in. What it does require is verification: the notice must be sworn by the lienor or the lienor's agent.
How long do I have to file a mechanics lien in New York?
Under section 10, at any time during the work or within eight months after the completion of the contract or the final performance of the work or the final furnishing of materials, dating from the last item. On real property improved or to be improved with a single family dwelling it is four months, not eight. A notice of lien for retainage may be filed within ninety days after the date the retainage was due to be released.
Where does a New York notice of lien get filed?
In the clerk's office of the county where the property is situated. If the property is situated in two or more counties, the notice is filed in the office of the clerk of each of them.
Who has to be served with a copy of the notice?
The owner under section 11, within five days before or thirty days after filing, personally, by leaving it at the last known residence with a person of suitable age and discretion, by registered or certified mail, or by affixing it conspicuously on the property. And under section 11-b, in the same window and by certified mail, whoever employed you or whoever you furnished materials to. If your contract was with a subcontractor you also serve the contractor.
What is the thirty-five day rule that kills New York liens?
Sections 11 and 11-b both say that failure to file proof of service with the county clerk within thirty-five days after the notice of lien is filed shall terminate the notice as a lien. Serving the copy is only half of it. The affidavit of service has to go back to the clerk inside thirty-five days or the lien ends, however correct the filing was.
How long does a New York mechanics lien last?
One year from filing under section 17, unless you commence a foreclosure action and file a notice of pendency, or file an extension with the same county clerk inside the year. On a single family dwelling there is no extension by filing: it can only be continued by an order of a court of record, for no more than a year at a time.
What happens if I claim more than I am owed in New York?
Section 39 says that if the court finds a lienor has wilfully exaggerated the amount claimed in the notice of lien, the lien is declared void and no recovery is had on it. That lienor also has no right to file any other or further lien for the same claim, and a second lien filed anyway can be vacated on two days notice.
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 N.Y. Lien Law section 34 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.