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2017 Mississippi Code
Title 85 - Debtor-Creditor Relationship
Chapter 7 - Liens
Article 21 - Special Liens on Real Estate or Other Property
§ 85-7-419. Waiver and release of lien or bond claim
Universal Citation: MS Code § 85-7-419 (2017)
- (1) A right to claim a lien or to claim upon a bond may not be waived in advance of furnishing of labor, services or materials. Any purported waiver or release of lien, bond claim or this article executed or made in advance of furnishing labor, services or materials is null, void and unenforceable.
- (2) When a claimant is requested to execute a waiver and release in exchange for or in order to induce payment other than final payment, the waiver and release shall substantially follow the Interim Waiver and Release upon Payment form set forth in Section 85-7-433(1). The failure to correctly complete any of the blank spaces in the referenced form does not invalidate the form if the subject matter of the release reasonably may be determined.
- (3) When a claimant is requested to execute a waiver and release in exchange for or in order to induce making of final payment, the waiver and release shall substantially follow the Waiver and Release upon Final Payment form set forth in Section 85-7-433(2). The failure to correctly complete any of the blank spaces in the referenced form does not invalidate the form if the subject matter of the release reasonably may be determined.
- (4) Nothing contained in this section shall affect:
- (a) The enforceability of any subordination of lien rights by a potential lien claimant to the rights of any other party which may have or acquire an interest in all or any part of the real estate or other property for which the potential lien claimant has furnished labor, services or material, even though the subordination is entered into in advance of furnishing labor, services or material, and even though the claimant has not actually received payment in full for its claim;
- (b) The enforceability of any waiver of lien rights given in connection with the settlement of a bona fide dispute concerning the amount due the lien claimant for labor, services or material which have already been furnished; or
- (c) The validity of a cancellation or release of a recorded claim of lien.
- (5) (a) When a waiver and release provided for in this section is executed by the claimant, it shall be binding against the claimant for all purposes, subject only to payment in full of the amount set forth in the waiver and release.
- (b) Amounts shall conclusively be deemed paid in full upon the earliest to occur of:
- (i) Actual receipt of funds;
- (ii) Execution by the claimant of a separate written acknowledgment of payment in full; or
- (iii) Sixty (60) days after the date of the execution of the waiver and release, unless before the expiration of the sixty-day period the claimant files in the county in which the property is located an affidavit of nonpayment, using substantially the affidavit of nonpayment form set forth in Section 85-7-433(3), and sends a true and accurate copy of the affidavit of nonpayment to the owner of the property in the manner provided in Section 85-7-405 for sending a notice of a claim of lien to the owner.
- (c) A claimant who is paid, in full, the amount set forth in the waiver and release form after filing an affidavit of nonpayment shall upon request execute in recordable form an affidavit swearing that payment in full has been received. Upon recordation thereof in the county in which the affidavit of nonpayment was recorded, the affidavit of nonpayment to which it relates shall be deemed void.
- (d) Nothing in this section shall shorten the time within which to file a claim of lien.
- (e) Except as provided in Section 85-7-413, a waiver and release provided in accordance with this section shall be suspended upon the filing of an affidavit of nonpayment until payment in full has been received. However, an affidavit of nonpayment shall not affect dissolution of the claimant's lien or the availability or enforceability of any owner's defenses pursuant to Section 85-7-413, if applicable.
- (f) The claimant may rely upon the information contained in the waiver and release form when completing for filing the affidavit of nonpayment.
- (b) Amounts shall conclusively be deemed paid in full upon the earliest to occur of:
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