State Codes and Statutes

Statutes > Utah > Title-38 > Chapter-01 > 38-1-39

38-1-39. Waiver or impairment of a lien right -- Forms -- Scope.
(1) As used in this section:
(a) "Check" means a payment instrument on a depository institution including:
(i) a check;
(ii) a draft;
(iii) an order; or
(iv) other instrument.
(b) "Depository institution" is as defined in Section 7-1-103.
(c) "Lien claimant" means a person that claims a lien under this chapter.
(d) "Receives payment" means, in the case of a restrictive endorsement, a payee hasendorsed a check and the check is presented to and paid by the depository institution on which itis drawn.
(2) Notwithstanding Section 38-1-29, a written consent given by a lien claimant thatwaives or limits the lien claimant's lien rights is enforceable only if the lien claimant:
(a) (i) executes a waiver and release that is signed by the lien claimant or the lienclaimant's authorized agent; or
(ii) for a restrictive endorsement on a check, includes a restrictive endorsement on acheck that is:
(A) signed by the lien claimant or the lien claimant's authorized agent; and
(B) in substantially the same form set forth in Subsection (4)(d); and
(b) receives payment of the amount identified in the waiver and release or check thatincludes the restrictive endorsement:
(i) including payment by a joint payee check; and
(ii) for a progress payment, only to the extent of the payment.
(3) (a) Notwithstanding the language of a waiver and release described in Subsection (2),Subsection (3)(b) applies if:
(i) the payment given in exchange for any waiver and release of lien is made by check;and
(ii) the check fails to clear the depository institution on which it is drawn for any reason.
(b) If the conditions of Subsection (3)(a) are met:
(i) the waiver and release described in Subsection (3)(a) is null, void, and of no legaleffect; and
(ii) the following will not be affected by the lien claimant's execution of the waiver andrelease:
(A) any lien;
(B) any lien right;
(C) any bond right;
(D) any contract right; or
(E) any other right to recover payment afforded to the lien claimant in law or equity.
(4) (a) A waiver and release given by a lien claimant meets the requirements of thissection if it is in substantially the form provided in this Subsection (4) for the circumstanceprovided in this Subsection (4).
(b) A waiver and release may be in substantially the following form if the lien claimant isrequired to execute a waiver and release in exchange for or to induce the payment of a progressbilling:

"UTAH CONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT

Property Name: _____________________________________________________________
Property Location: ___________________________________________________________
Undersigned's Customer: _____________________________________________________
Invoice/Payment Application Number: __________________________________________
Payment Amount: ___________________________________________________________
Payment Period: ____________________________________________________________
To the extent provided below, this document becomes effective to release and theundersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38,Chapter 1, Mechanics' Liens, or any bond right under Utah Code Ann., Title 14, Contractors'Bonds, or Section 63G-6-505 related to payment rights the undersigned has on the abovedescribed Property once:
(1) the undersigned endorses a check in the above referenced Payment Amount payableto the undersigned; and
(2) the check is paid by the depository institution on which it is drawn.
This waiver and release applies to a progress payment for the work, materials, equipment,or a combination of work, materials, and equipment furnished by the undersigned to the Propertyor to the Undersigned's Customer which are the subject of the Invoice or Payment Application,but only to the extent of the Payment Amount. This waiver and release does not apply to anyretention withheld; any items, modifications, or changes pending approval; disputed items andclaims; or items furnished or invoiced after the Payment Period.
The undersigned warrants that the undersigned either has already paid or will use themoney the undersigned receives from this progress payment promptly to pay in full all theundersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials,equipment, or combination of work, materials, and equipment that are the subject of this waiverand release.
Dated: ________________________
___________________________________________________________(Company Name)
_____________________________________________________By:__________________
_____________________________________________________Its:__________________"
(c) A waiver and release may be in substantially the following form if the lien claimant isrequired to execute a waiver and release in exchange for or to induce the payment of a finalbilling:
"UTAH WAIVER AND RELEASE UPON FINAL PAYMENT

Property Name: ____________________________________________________________
Property Location: __________________________________________________________
Undersigned's Customer: _____________________________________________________
Invoice/Payment Application Number: __________________________________________
Payment Amount: ___________________________________________________________

To the extent provided below, this document becomes effective to release and theundersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38,Chapter 1, Mechanics' Liens, or any bond right under Utah Code Ann., Title 14, Contractors'Bonds, or Section 63G-6-505 related to payment rights the undersigned has on the abovedescribed Property once:

(1) the undersigned endorses a check in the above referenced Payment Amount payableto the undersigned; and
(2) the check is paid by the depository institution on which it is drawn.
This waiver and release applies to the final payment for the work, materials, equipment,or combination of work, materials, and equipment furnished by the undersigned to the Propertyor to the Undersigned's Customer.
The undersigned warrants that the undersigned either has already paid or will use themoney the undersigned receives from the final payment promptly to pay in full all theundersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials,equipment, or combination of work, materials, and equipment that are the subject of this waiverand release.
Dated: ________________________
___________________________________________________________(Company Name)
_____________________________________________________By:__________________
_____________________________________________________Its:__________________"
(d) A restrictive endorsement placed on a check to effectuate a waiver and releasedescribed in this Subsection (4) meets the requirements of this section if it is in substantially thefollowing form:
"This check is a progress/ final payment for property described on this check sufficientfor identification. Endorsement of this check is an acknowledgment by the endorser that thewaiver and release to which the payment applies is effective to the extent provided in Utah CodeAnn. Subsection 38-1-39(4)(b) or (c) respectively."
(e) (i) If using a restrictive endorsement under Subsection (4)(d), the person preparingthe check shall indicate whether the check is for a progress payment or a final payment bycircling the word "progress" if the check is for a progress payment, or the word "final" if thecheck is for a final payment.
(ii) If a restrictive endorsement does not indicate whether the check is for a progresspayment or a final payment, it is considered to be for a progress payment.
(5) (a) If the conditions of Subsection (5)(b) are met, this section does not affect theenforcement of:
(i) an accord and satisfaction regarding a bona fide dispute; or
(ii) an agreement made in settlement of an action pending in any court or arbitration.
(b) Pursuant to Subsection (5)(a), this section does not affect enforcement of an accordand satisfaction or settlement described in Subsection (5)(a) if the accord and satisfaction orsettlement:
(i) is in a writing signed by the lien claimant; and
(ii) specifically references the lien rights waived or impaired.

Amended by Chapter 382, 2008 General Session

State Codes and Statutes

Statutes > Utah > Title-38 > Chapter-01 > 38-1-39

38-1-39. Waiver or impairment of a lien right -- Forms -- Scope.
(1) As used in this section:
(a) "Check" means a payment instrument on a depository institution including:
(i) a check;
(ii) a draft;
(iii) an order; or
(iv) other instrument.
(b) "Depository institution" is as defined in Section 7-1-103.
(c) "Lien claimant" means a person that claims a lien under this chapter.
(d) "Receives payment" means, in the case of a restrictive endorsement, a payee hasendorsed a check and the check is presented to and paid by the depository institution on which itis drawn.
(2) Notwithstanding Section 38-1-29, a written consent given by a lien claimant thatwaives or limits the lien claimant's lien rights is enforceable only if the lien claimant:
(a) (i) executes a waiver and release that is signed by the lien claimant or the lienclaimant's authorized agent; or
(ii) for a restrictive endorsement on a check, includes a restrictive endorsement on acheck that is:
(A) signed by the lien claimant or the lien claimant's authorized agent; and
(B) in substantially the same form set forth in Subsection (4)(d); and
(b) receives payment of the amount identified in the waiver and release or check thatincludes the restrictive endorsement:
(i) including payment by a joint payee check; and
(ii) for a progress payment, only to the extent of the payment.
(3) (a) Notwithstanding the language of a waiver and release described in Subsection (2),Subsection (3)(b) applies if:
(i) the payment given in exchange for any waiver and release of lien is made by check;and
(ii) the check fails to clear the depository institution on which it is drawn for any reason.
(b) If the conditions of Subsection (3)(a) are met:
(i) the waiver and release described in Subsection (3)(a) is null, void, and of no legaleffect; and
(ii) the following will not be affected by the lien claimant's execution of the waiver andrelease:
(A) any lien;
(B) any lien right;
(C) any bond right;
(D) any contract right; or
(E) any other right to recover payment afforded to the lien claimant in law or equity.
(4) (a) A waiver and release given by a lien claimant meets the requirements of thissection if it is in substantially the form provided in this Subsection (4) for the circumstanceprovided in this Subsection (4).
(b) A waiver and release may be in substantially the following form if the lien claimant isrequired to execute a waiver and release in exchange for or to induce the payment of a progressbilling:

"UTAH CONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT

Property Name: _____________________________________________________________
Property Location: ___________________________________________________________
Undersigned's Customer: _____________________________________________________
Invoice/Payment Application Number: __________________________________________
Payment Amount: ___________________________________________________________
Payment Period: ____________________________________________________________
To the extent provided below, this document becomes effective to release and theundersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38,Chapter 1, Mechanics' Liens, or any bond right under Utah Code Ann., Title 14, Contractors'Bonds, or Section 63G-6-505 related to payment rights the undersigned has on the abovedescribed Property once:
(1) the undersigned endorses a check in the above referenced Payment Amount payableto the undersigned; and
(2) the check is paid by the depository institution on which it is drawn.
This waiver and release applies to a progress payment for the work, materials, equipment,or a combination of work, materials, and equipment furnished by the undersigned to the Propertyor to the Undersigned's Customer which are the subject of the Invoice or Payment Application,but only to the extent of the Payment Amount. This waiver and release does not apply to anyretention withheld; any items, modifications, or changes pending approval; disputed items andclaims; or items furnished or invoiced after the Payment Period.
The undersigned warrants that the undersigned either has already paid or will use themoney the undersigned receives from this progress payment promptly to pay in full all theundersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials,equipment, or combination of work, materials, and equipment that are the subject of this waiverand release.
Dated: ________________________
___________________________________________________________(Company Name)
_____________________________________________________By:__________________
_____________________________________________________Its:__________________"
(c) A waiver and release may be in substantially the following form if the lien claimant isrequired to execute a waiver and release in exchange for or to induce the payment of a finalbilling:
"UTAH WAIVER AND RELEASE UPON FINAL PAYMENT

Property Name: ____________________________________________________________
Property Location: __________________________________________________________
Undersigned's Customer: _____________________________________________________
Invoice/Payment Application Number: __________________________________________
Payment Amount: ___________________________________________________________

To the extent provided below, this document becomes effective to release and theundersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38,Chapter 1, Mechanics' Liens, or any bond right under Utah Code Ann., Title 14, Contractors'Bonds, or Section 63G-6-505 related to payment rights the undersigned has on the abovedescribed Property once:

(1) the undersigned endorses a check in the above referenced Payment Amount payableto the undersigned; and
(2) the check is paid by the depository institution on which it is drawn.
This waiver and release applies to the final payment for the work, materials, equipment,or combination of work, materials, and equipment furnished by the undersigned to the Propertyor to the Undersigned's Customer.
The undersigned warrants that the undersigned either has already paid or will use themoney the undersigned receives from the final payment promptly to pay in full all theundersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials,equipment, or combination of work, materials, and equipment that are the subject of this waiverand release.
Dated: ________________________
___________________________________________________________(Company Name)
_____________________________________________________By:__________________
_____________________________________________________Its:__________________"
(d) A restrictive endorsement placed on a check to effectuate a waiver and releasedescribed in this Subsection (4) meets the requirements of this section if it is in substantially thefollowing form:
"This check is a progress/ final payment for property described on this check sufficientfor identification. Endorsement of this check is an acknowledgment by the endorser that thewaiver and release to which the payment applies is effective to the extent provided in Utah CodeAnn. Subsection 38-1-39(4)(b) or (c) respectively."
(e) (i) If using a restrictive endorsement under Subsection (4)(d), the person preparingthe check shall indicate whether the check is for a progress payment or a final payment bycircling the word "progress" if the check is for a progress payment, or the word "final" if thecheck is for a final payment.
(ii) If a restrictive endorsement does not indicate whether the check is for a progresspayment or a final payment, it is considered to be for a progress payment.
(5) (a) If the conditions of Subsection (5)(b) are met, this section does not affect theenforcement of:
(i) an accord and satisfaction regarding a bona fide dispute; or
(ii) an agreement made in settlement of an action pending in any court or arbitration.
(b) Pursuant to Subsection (5)(a), this section does not affect enforcement of an accordand satisfaction or settlement described in Subsection (5)(a) if the accord and satisfaction orsettlement:
(i) is in a writing signed by the lien claimant; and
(ii) specifically references the lien rights waived or impaired.

Amended by Chapter 382, 2008 General Session


State Codes and Statutes


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State Codes and Statutes

Statutes > Utah > Title-38 > Chapter-01 > 38-1-39

38-1-39. Waiver or impairment of a lien right -- Forms -- Scope.
(1) As used in this section:
(a) "Check" means a payment instrument on a depository institution including:
(i) a check;
(ii) a draft;
(iii) an order; or
(iv) other instrument.
(b) "Depository institution" is as defined in Section 7-1-103.
(c) "Lien claimant" means a person that claims a lien under this chapter.
(d) "Receives payment" means, in the case of a restrictive endorsement, a payee hasendorsed a check and the check is presented to and paid by the depository institution on which itis drawn.
(2) Notwithstanding Section 38-1-29, a written consent given by a lien claimant thatwaives or limits the lien claimant's lien rights is enforceable only if the lien claimant:
(a) (i) executes a waiver and release that is signed by the lien claimant or the lienclaimant's authorized agent; or
(ii) for a restrictive endorsement on a check, includes a restrictive endorsement on acheck that is:
(A) signed by the lien claimant or the lien claimant's authorized agent; and
(B) in substantially the same form set forth in Subsection (4)(d); and
(b) receives payment of the amount identified in the waiver and release or check thatincludes the restrictive endorsement:
(i) including payment by a joint payee check; and
(ii) for a progress payment, only to the extent of the payment.
(3) (a) Notwithstanding the language of a waiver and release described in Subsection (2),Subsection (3)(b) applies if:
(i) the payment given in exchange for any waiver and release of lien is made by check;and
(ii) the check fails to clear the depository institution on which it is drawn for any reason.
(b) If the conditions of Subsection (3)(a) are met:
(i) the waiver and release described in Subsection (3)(a) is null, void, and of no legaleffect; and
(ii) the following will not be affected by the lien claimant's execution of the waiver andrelease:
(A) any lien;
(B) any lien right;
(C) any bond right;
(D) any contract right; or
(E) any other right to recover payment afforded to the lien claimant in law or equity.
(4) (a) A waiver and release given by a lien claimant meets the requirements of thissection if it is in substantially the form provided in this Subsection (4) for the circumstanceprovided in this Subsection (4).
(b) A waiver and release may be in substantially the following form if the lien claimant isrequired to execute a waiver and release in exchange for or to induce the payment of a progressbilling:

"UTAH CONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT

Property Name: _____________________________________________________________
Property Location: ___________________________________________________________
Undersigned's Customer: _____________________________________________________
Invoice/Payment Application Number: __________________________________________
Payment Amount: ___________________________________________________________
Payment Period: ____________________________________________________________
To the extent provided below, this document becomes effective to release and theundersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38,Chapter 1, Mechanics' Liens, or any bond right under Utah Code Ann., Title 14, Contractors'Bonds, or Section 63G-6-505 related to payment rights the undersigned has on the abovedescribed Property once:
(1) the undersigned endorses a check in the above referenced Payment Amount payableto the undersigned; and
(2) the check is paid by the depository institution on which it is drawn.
This waiver and release applies to a progress payment for the work, materials, equipment,or a combination of work, materials, and equipment furnished by the undersigned to the Propertyor to the Undersigned's Customer which are the subject of the Invoice or Payment Application,but only to the extent of the Payment Amount. This waiver and release does not apply to anyretention withheld; any items, modifications, or changes pending approval; disputed items andclaims; or items furnished or invoiced after the Payment Period.
The undersigned warrants that the undersigned either has already paid or will use themoney the undersigned receives from this progress payment promptly to pay in full all theundersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials,equipment, or combination of work, materials, and equipment that are the subject of this waiverand release.
Dated: ________________________
___________________________________________________________(Company Name)
_____________________________________________________By:__________________
_____________________________________________________Its:__________________"
(c) A waiver and release may be in substantially the following form if the lien claimant isrequired to execute a waiver and release in exchange for or to induce the payment of a finalbilling:
"UTAH WAIVER AND RELEASE UPON FINAL PAYMENT

Property Name: ____________________________________________________________
Property Location: __________________________________________________________
Undersigned's Customer: _____________________________________________________
Invoice/Payment Application Number: __________________________________________
Payment Amount: ___________________________________________________________

To the extent provided below, this document becomes effective to release and theundersigned is considered to waive any notice of lien or right under Utah Code Ann., Title 38,Chapter 1, Mechanics' Liens, or any bond right under Utah Code Ann., Title 14, Contractors'Bonds, or Section 63G-6-505 related to payment rights the undersigned has on the abovedescribed Property once:

(1) the undersigned endorses a check in the above referenced Payment Amount payableto the undersigned; and
(2) the check is paid by the depository institution on which it is drawn.
This waiver and release applies to the final payment for the work, materials, equipment,or combination of work, materials, and equipment furnished by the undersigned to the Propertyor to the Undersigned's Customer.
The undersigned warrants that the undersigned either has already paid or will use themoney the undersigned receives from the final payment promptly to pay in full all theundersigned's laborers, subcontractors, materialmen, and suppliers for all work, materials,equipment, or combination of work, materials, and equipment that are the subject of this waiverand release.
Dated: ________________________
___________________________________________________________(Company Name)
_____________________________________________________By:__________________
_____________________________________________________Its:__________________"
(d) A restrictive endorsement placed on a check to effectuate a waiver and releasedescribed in this Subsection (4) meets the requirements of this section if it is in substantially thefollowing form:
"This check is a progress/ final payment for property described on this check sufficientfor identification. Endorsement of this check is an acknowledgment by the endorser that thewaiver and release to which the payment applies is effective to the extent provided in Utah CodeAnn. Subsection 38-1-39(4)(b) or (c) respectively."
(e) (i) If using a restrictive endorsement under Subsection (4)(d), the person preparingthe check shall indicate whether the check is for a progress payment or a final payment bycircling the word "progress" if the check is for a progress payment, or the word "final" if thecheck is for a final payment.
(ii) If a restrictive endorsement does not indicate whether the check is for a progresspayment or a final payment, it is considered to be for a progress payment.
(5) (a) If the conditions of Subsection (5)(b) are met, this section does not affect theenforcement of:
(i) an accord and satisfaction regarding a bona fide dispute; or
(ii) an agreement made in settlement of an action pending in any court or arbitration.
(b) Pursuant to Subsection (5)(a), this section does not affect enforcement of an accordand satisfaction or settlement described in Subsection (5)(a) if the accord and satisfaction orsettlement:
(i) is in a writing signed by the lien claimant; and
(ii) specifically references the lien rights waived or impaired.

Amended by Chapter 382, 2008 General Session


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