West Virginia lien waiver: there is no anti waiver statute at all
Plenty of state by state charts put West Virginia in the column of states that prohibit an advance lien waiver. Read the code and that is not what it says. Article 2 of chapter 38 runs from section 1 to section 39 and not one of those sections is about waiver.
There is no West Virginia statute voiding a lien waiver signed before payment, and no statute on subordination either. West Virginia lien waivers are governed by ordinary contract law, which means the document you sign is the whole of the rule.
Read the law: W. Va. Code chapter 38, article 2code.wvlegislature.gov
W. Va. Code 38-2-21, the closest section there isFill it in online Type your details in and download it already filled in.Effect of payment by owner to contractor or subcontractor
That is a section heading, not a waiver rule. It protects a subcontractor's lien from being wiped out by the owner paying somebody else. The only other section in the neighborhood is 38-2-36, which releases a lien that already exists. Neither touches a waiver signed in advance.
Download a blank West Virginia lien waiver
West Virginia 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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How this was checked, because the charts say otherwise
The full section list of W. Va. Code chapter 38, article 2, Mechanics' Liens, was read heading by heading. It runs section 38-2-1 through 38-2-39, with 38-2-6a in between, and every heading is lien machinery: who gets a lien, how each class of claimant records notice, priority between lienors, the owner's bond, enforcement, and release.
There is no section about waiver, no section about releasing rights in advance, and no section about subordination. The nearest neighbors are 38-2-36, which is about discharging a lien that already exists, and 38-2-21, which stops the owner's payment to a contractor from destroying a subcontractor's lien. Neither is an anti waiver rule.
The contracts side was checked too, because several states hide the anti waiver rule outside the lien chapter. Montana puts it under Illegal Objects and Provisions, Kentucky under the Contracts title, Kansas under Contracts and Promises. West Virginia has no equivalent.
What that means on a West Virginia job
Everything rides on the document. A West Virginia waiver means exactly what it says, no more and no less, and there is no statute waiting to rescue you from a broad one. An unconditional waiver signed against a check that has not cleared releases your rights whether or not the check ever clears.
Advance waiver clauses in subcontracts are enforceable here. If the subcontract says you waive lien rights, that clause is not void on its face in West Virginia, so the negotiation has to happen before signing the contract rather than at the first draw.
The three state group this belongs to
West Virginia, Ohio and Washington are the three states verified so far where no statute voids an advance waiver. They are the states where a well drafted conditional form actually changes the outcome, because in a prohibited state the contractor is protected whether or not he reads anything.
If you work across state lines, that is the distinction to carry in your head: in most states the trap is the paperwork being ignored, and in these three the trap is the paperwork being enforced exactly as written.
Which of the four to sign on a West Virginia job
In a state with no anti waiver statute this choice is the entire protection. Sign the conditional version and the release is tied to the payment clearing. Sign the unconditional one and the release happens on signature, paid or not, with no statute to argue against it.
Questions people ask
Can I waive my West Virginia lien rights before I get paid?
Yes. Nothing in the West Virginia Code prevents it. Article 2 of chapter 38 contains no waiver section, and no other chapter supplies one, so an advance waiver is governed by ordinary contract law and is enforceable according to its terms.
Does West Virginia require a specific lien waiver form?
No. West Virginia prescribes no statutory waiver wording. That freedom cuts both ways, because a form somebody else drafted can be broader than the payment it was given for and no statute narrows it.
Some charts say West Virginia prohibits advance waivers. Who is right?
The code is. The full section list of chapter 38 article 2 has no waiver section, and West Virginia has no anti waiver provision in its contracts chapters either. Charts compiled state by state get this one wrong often enough that it is worth checking the section list yourself before relying on it.
What should I sign on a West Virginia job then?
A conditional waiver, with the amount and the through date written in, and never an unconditional one until the money is in your account and cleared. In a state with no anti waiver statute the form is the only protection available.
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 W. Va. Code chapter 38, article 2 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.