Rhode Island lien waiver: void in the contract, valid once you are paid

What the first sentence actually kills

Read the target of the first sentence carefully, because it is broader than a waiver form. It covers a covenant, promise, agreement or understanding in a construction contract, in connection with one, or collateral to one, that purports to bar the filing of a notice of intention or the taking of any steps to enforce a lien. That reaches the no lien clause buried in a subcontract, the side letter promising never to file, and the pre printed paragraph in a purchase order. All of it is void and unenforceable.

It also covers the notice of intention specifically, which matters more in Rhode Island than the word lien does. Under 34-28-4 the notice of intention is the perfecting step. A clause that stopped you filing the notice would kill the lien without ever mentioning the lien, and the legislature closed that route by naming the notice in the text.

What the sentence does not do is give you a defense to a waiver you signed for money. That is the point of the second sentence, and it is unusually explicit. Most states that void advance waivers leave the paid waiver to be inferred. Rhode Island wrote it into the same subsection so there could be no argument that payment day releases are void too.

Simultaneously with or after payment, and what that means at a draw

The proviso protects a waiver executed and delivered simultaneously with or after payment for the labor performed or the materials furnished has been made. Two things are being tested there: whether payment has been made, and when the document was executed and delivered relative to it. A waiver handed over before the check exists fails both tests.

That is the ordinary draw meeting problem, and Rhode Island's answer is friendlier than most. A conditional waiver, one that says the release takes effect when the payment identified in it actually clears, is the document that fits the statute. You can sign it and hand it across at the meeting, because it does not operate until the money is made, and nothing in 34-28-1(b) requires you to wait for the bank before signing anything.

An unconditional waiver signed before the funds move is a different matter. It purports to release the lien as of the signature. Whether that is caught by the first sentence of 34-28-1(b) is exactly the argument you do not want to be having after the check bounces, and it is an argument you never have to have if the form says conditional on payment on its face.

The two hundred days that look back, and the forty that do not wait

Rhode Island's timing is unusual and it catches people who read the number without reading the direction. Under 34-28-4 the notice of intention has to be mailed by registered or certified mail with return receipt to the owner of record, and a copy filed in the land evidence records of the city or town, before or within two hundred days after the work is done or the materials furnished. Miss it and any lien you could have claimed is void and wholly lost.

The catch is the reach. The section perfects the lien as to work done or materials furnished during the two hundred days before the filing and afterwards, but not before that window. 34-28-9 says the same thing from the other side: a recorded notice of lien is effective for two hundred days prior to the date of filing. On a job that runs longer than that, a single notice filed at the end reaches back two hundred days and no further, and everything older is gone. Retainage is the exception written into 34-28-9, effective from the commencement of the work.

There is also a trap for a mailing that never lands. If the notice of intention comes back undelivered, the lien is void and wholly lost unless you file the notice together with the envelope it came back in, within thirty days of the return and in no event more than two hundred days after the mailing.

Then the short clock. Under 34-28-10 you enforce by filing a complaint in the superior court for the county and a notice of lis pendens in the land evidence records, both within forty days of the date the notice of intention was recorded, with the complaint filed on the same day as the lis pendens or within seven days after it. Forty days is one of the shortest enforcement windows in the country and it starts running the moment you record.

The notice you owe the owner before you start

If you contract directly with the owner, the lessee or the tenant, and you are not a material supplier, 34-28-4.1 says you get no lien at all unless you gave that person a notice of possible mechanic's lien before you started work or delivered materials. It can be a conspicuous paragraph in the written contract or it can go out by certified mail, return receipt requested, but it has to be in place before the job starts.

The statute prints the wording. It tells the owner that the undersigned is about to perform work or furnish materials, that the undersigned and anyone providing labor or materials under contract with the undersigned may file a mechanic's lien in the event of nonpayment, and that it is the owner's responsibility to assure himself that those other people are paid.

Skipping it has two consequences and only one of them is obvious. You lose your own lien. The subs and suppliers beneath you keep theirs, because the section says your failure does not affect anybody else's right. And then the sting: the direct contractor who failed to give the notice must indemnify and hold the owner harmless from any payment or costs incurred on account of lien claims by those not in privity with him, unless the owner has not paid him. Forget the notice and you can end up paying for your own subcontractor's lien against a job you were never paid for.

What to do about it on a Rhode Island job

Strike the no lien clause and quote the statute if anybody argues. A contract term barring the filing of a notice of intention or any step to enforce a lien is void and unenforceable under 34-28-1(b), so it costs you nothing to refuse it and signing around it changes nothing either way.

Sign conditional, and put the amount and the through date on the form. Rhode Island expressly permits a waiver executed simultaneously with or after payment, and a conditional waiver is the document that matches that description. There is no statutory waiver wording in chapter 34-28, so nothing in the chapter will narrow a release that does not narrow itself.

Get the 34-28-4.1 notice into the contract if you are the direct contractor, before the first day on site, because it cannot be cured later and it carries an indemnity with it. Then work the numbers in order: two hundred days from the work to mail and file the notice of intention, remembering it reaches back only two hundred days from the filing so a long job needs more than one, thirty days to refile with the envelope if the mail comes back, and forty days from recording to file the complaint and the lis pendens. A waiver protects nothing you have already released and it does not file anything.

Which of the four to sign on a Rhode Island job

Rhode Island permits the waiver the statute describes, which is one given with the money or after it. A conditional waiver matches that shape exactly, because it takes effect when the payment clears. An unconditional one signed at a draw meeting, before the check moves, is the document the first sentence of 34-28-1(b) was written about.

Questions people ask

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 R.I. Gen. Laws section 34-28-1(b) 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.