Wisconsin lien waiver: the clause is void, the paper you sign is not
Wisconsin reads like two states at once. One statute voids the subcontract clause that demands you waive lien rights before you are paid. Another makes the waiver you actually sign valid and binding whatever the timing and whatever you got for it. Both are true, and the sentence connecting them is the one nobody quotes.
Wis. Stat. 779.135 voids a construction contract provision requiring anyone entitled to a construction lien to waive that right, or a claim against a payment bond, before being paid. Wis. Stat. 779.05 then makes a waiver document valid and binding whatever the timing or the consideration, and gives you the right to refuse to furnish one unless you have been paid in full for the work it relates to. The clause cannot force you. The signature still binds you.
Read the law: Wisconsin Statutes section 779.05codes.findlaw.com
Wis. Stat. 779.05(1), the sentence nobody quotesFill it in online Type your details in and download it already filled in.A lien claimant or potential lien claimant of whom a waiver is requested is entitled to refuse to furnish a waiver unless paid in full for the labor, services, materials, plans, or specifications to which the waiver relates.
That is a statutory right to say no, and it is what makes 779.135 mean something on a Friday afternoon. Refusing to sign an unpaid waiver in Wisconsin is not you being awkward about the draw. It is the position the statute puts you in, and the contract clause somebody will point at to say otherwise is void.
Download a blank Wisconsin lien waiver
Wisconsin prescribes no statutory wording, so this is the general conditional waiver on progress payment, the form that fits most draws. What Wisconsin does require, if you want the release to stop at the draw it came with, is that the document specifically and expressly limit the waiver under 779.05, which means the amount and the through date have to be filled in rather than left blank. 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 is void, and that is 779.135
Wisconsin names three things a construction contract may not contain. A provision requiring any person entitled to a construction lien to waive that right, or a claim against a payment bond, before he or she has been paid. A provision putting the contract under another state's law or forcing the dispute into another state. And a provision making payment to the prime contractor by somebody who has no contract with the subcontractor a condition precedent to that subcontractor being paid.
The first is the one that matters here, and it is aimed squarely at the subcontract rather than at the waiver. If the paperwork you signed at the start of the job obliges you to hand over lien waivers before the money arrives, that obligation is void. Not voidable, and not unenforceable only if you object loudly enough at the time.
The third is worth reading as well, because Wisconsin drew a careful line through pay if paid. A clause making the owner's payment a condition precedent to your payment is void, but the statute does not prohibit a clause that merely delays your payment until the prime has been paid. The distance between a condition and a delay is the whole of that argument, and the section puts it in writing.
The signature is not void, and that is 779.05
Under 779.05(1) any document signed by a lien claimant is valid and binding as a waiver regardless of consideration and regardless of when it was signed. The void clause in the other section does not travel into the paper. A waiver you were never obliged to give is still a waiver once you have given it.
It also reaches further than most people expect. The waiver covers all labor, services, materials, plans or specifications performed, furnished or procured, or to be performed, furnished or procured, by the claimant at any time for the improvement the waiver relates to, except to the extent the document specifically and expressly limits it. Read the four words in the middle of that. It reaches forward, into work you have not done yet.
The way out is in the same sentence and it is narrow: specifically and expressly limits. That means a dollar figure and a through date written on the face of the waiver. Not an understanding, not a covering email, not what everybody on the job knew the check was for.
The two rules that stop an accidental waiver
A waiver furnished is a waiver of lien rights only, and not of any contract rights of the claimant otherwise existing. The debt survives the signature and so does the right to sue on the contract. What you handed over is the security on the property, which is usually the part that made the suit worth filing.
Under 779.05(2) a promissory note or other evidence of debt given for a lienable claim is not a waiver of lien rights unless the note or other instrument is received as payment and expressly declares that receiving it is a waiver. Two conditions, and both have to be true, so taking paper from a slow paying general does not cost you the lien by accident.
Wisconsin is careful in both of those directions, then. Careful about the clause that would compel a waiver out of you, and careful about the waiver you never meant to give. It is not careful at all about the one you sign with your eyes open.
What to do about it on a Wisconsin job
Refuse, if you have not been paid in full for the work the waiver relates to. 779.05(1) gives you that right in terms and 779.135 has already killed the contract clause somebody will wave at you. Put the refusal in one line in writing and keep your copy of it, because the value of a statutory right is in being able to show you used it.
When you do sign, sign conditional and limit it specifically and expressly. Amount, through date, and a description of the portion where you are releasing only part of what you furnished. Without that, 779.05 reads the waiver as covering the improvement, including work that has not started.
Do not treat the void clause as a defense to raise later in place of a refusal made now. The clause being void means nobody can compel the waiver out of you. It does nothing to unwind one you have already handed over, because 779.05 validates that document on its own terms and asks no questions about why you signed it.
Signed with the owner on a Wisconsin job and hiring anybody under you? Waivers are the back half. Wis. Stat. 779.02(2)(a) puts the prime contractor notice in the front half, inside the written contract itself, and (2)(c) says a prime contractor who was required to give it and did not does not have the lien and remedy provided by this subchapter.
Working under somebody else on a Wisconsin job? The waiver is the back half and this is the front. Wis. Stat. 779.02(2)(b) gives you 60 days from the first day you performed, furnished or procured anything to serve a notice to owner on the owner in 2 signed copies, and 779.02(3) says a claimant who fails to shall have no lien on the land or improvement to which the failure relates.
Which of the four to sign on a Wisconsin job
Wisconsin voids the clause that demands an unpaid waiver and then validates the waiver you hand over anyway, so the form is doing the work the statute stops short of. A conditional waiver releases nothing until the payment clears. An unconditional one releases on signature, and under 779.05 it reaches work you have not even started unless the document specifically and expressly limits it.
Questions people ask
Can my Wisconsin subcontract require lien waivers before payment?
No. Wis. Stat. 779.135 voids a provision in a construction contract requiring any person entitled to a construction lien to waive that right, or a claim against a payment bond, before being paid. The clause is void, but that does not make a waiver you actually sign invalid, which is the trap this page exists to point at.
Can I refuse to sign a Wisconsin lien waiver until I am paid?
Yes, and the statute says so in terms. Wis. Stat. 779.05(1) entitles a lien claimant or potential lien claimant of whom a waiver is requested to refuse to furnish it unless paid in full for the labor, services, materials, plans or specifications the waiver relates to. It is a right rather than a courtesy, so you can say it plainly.
Does a Wisconsin lien waiver cover work I have not done yet?
Yes, unless you stop it. The waiver covers everything performed, furnished or procured, or to be performed, furnished or procured, at any time for that improvement, except to the extent the document specifically and expressly limits the waiver to a particular portion. An unlimited progress waiver on a long job is a much bigger release than the draw it came with.
Does signing a Wisconsin waiver wipe out the money I am owed?
No. A waiver furnished is a waiver of lien rights only and not of any contract rights otherwise existing, so the debt and the breach of contract claim both survive. A promissory note is treated the same way under 779.05(2) and is not a waiver unless it was received as payment and expressly declares that receiving it waives lien rights.
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 Wisconsin Statutes section 779.05 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.