The American Institute of Architects (AIA) has released a new series of state-specific waiver and release forms including forms for California. The new California-specific forms are:
G901CA-2022 - California Conditional Waiver and Release on Progress Payment
G902CA-2022 - California Unconditional Waiver and Release on Progress Payment
G903CA-2022 - California Conditional Waiver and Release on Final Payment
G904CA-2022 - California Unconditional Waiver and Release on Final Payment
California is one of twelve states - including Arizona, Florida, Georgia, Massachusetts, Michigan, Mississippi, Missouri, Nevada, Texas, Utah and Wyoming - which regulate waiver and release forms on construction projects. California's waiver and release statute, which is codified at Civil Code section 8120 et seq., sets forth specific language which should be used in waivers and releases. While the exact language set forth under California's waiver and release statutes does not need to be used, the statute provides that the language must be "in substantially" the same form, and most people follow the statutory language exactly.
For those who aren't familiar with California's waiver and release statute, they provide a mechanism by which higher-tiered parties can protect themselves from mechanics liens, stop payment notice and payment bond claims. California's waiver and release statute includes four (4) different waiver and release forms and the application of each depends on: (1) whether the form is to be used for progress payments or final payment; and (2) whether the form is to be used before or after payment has been made.
Waiver and release forms can be used on both private and public works projects, and although California does not require the use of waiver and release forms, when they are used, they are intended to be used together. On projects where waiver and release forms are used it is usually specified in the contract documents whether waiver and release forms are to be used.
When waiver and release forms are contractually required, a conditional waiver and release form upon progress payment is typically submitted with each payment application or invoice. The conditional waiver and release form upon progress payment provides that upon payment (i.e., the "condition") the party providing the waiver and release form will release all mechanics lien, stop payment and payment bond rights in the amount specified in the form.
In addition, after the initial progress payment is made, an unconditional waiver and release upon progress payment is typically submitted with each payment application for the previous payment made. The unconditional waiver and release form upon progress payment provides that the party providing the waiver and release form unconditionally releases all mechanics lien, stop payment and payment bond rights in the amount specified in the form.
This same staggered form submittal process is also used for final payment. An illustration of how these forms are used on a hypothetical project is illustrated below:
Some may worry about what happens if an unconditional waiver and release upon final payment is not submitted at the end of a project, because even if required under the contract documents, the cost and time of filing a lawsuit or claim in arbitration just to obtain the form doesn't make it a realistic option. Not to worry. If final payment is made, and you have proof of that payment, a conditional