2022 Wisconsin Statutes & Annotations
Chapter 779 - Liens.
779.05 - Waivers of lien.
779.05 Waivers of lien.
(1) Any document signed by a lien claimant or potential claimant and purporting to be a waiver of construction lien rights under this subchapter, is valid and binding as a waiver whether or not consideration was paid therefor and whether the document was signed before or after the labor, services, materials, plans, or specifications were performed, furnished, or procured, or contracted for. Any ambiguity in such document shall be construed against the person signing it. Any waiver document shall be deemed to waive all lien rights of the signer for 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 to which the waiver relates, except to the extent that the document specifically and expressly limits the waiver to apply to a particular portion of such labor, services, materials, plans, or specifications. 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. A waiver furnished is a waiver of lien rights only, and not of any contract rights of the claimant otherwise existing.
(2) A promissory note or other evidence of debt given for any lienable claim shall not be deemed a waiver of lien rights unless the note or other instrument is received as payment and expressly declares that receipt thereof is a waiver of lien rights.
History: 1979 c. 32 s. 57; Stats. 1979 s. 779.05; 2005 a. 204.
Public improvement liens under this section are subject to the waiver provision of s. 289.05 (1) [now sub. (1)]. Since waiver of a public improvement lien disposes of the lien itself, the refiling of a claim for lien after a waiver was a nullity and the fact that the claim was not disputed following refiling did not revive the lien. Druml Co. v. City of New Berlin, 78 Wis. 2d 305, 254 N.W.2d 265 (1977).
Section 779.135 (1) voids a contract provision that requires a subcontractor to waive its right to a construction lien before it can get paid. Sub. (1) specifically allows a subcontractor who has signed a contract containing a lien waiver provision to refuse to furnish the waiver unless paid in full for the work or material to which the waiver relates. Thus, a subcontractor facing a void construction lien waiver contract provision has a choice: it can either tender a lien waiver prior to being paid or refuse to do so until it is paid. Tri-State Mechanical, Inc. v. Northland College, 2004 WI App 100, 273 Wis. 2d 471, 681 N.W.2d 302, 03-2182.
Under sub. (1), in order to limit a lien waiver, a document must specifically and expressly limit the waiver to apply to a particular portion of labor, services, materials, plans, or specifications. In this case, simply crossing off “to Date" and writing in “Partial" in the title of the document did not specifically and expressly limit the waiver to a particular portion of the work. Moreover, the reference to a specific dollar amount in the lien waiver document failed to expressly limit the waiver because the lien waiver did not state that the amount related to a particular portion of the work. Great Lakes Excavating, Inc. v. Dollar Tree Stores, Inc., 2021 WI App 23, 397 Wis. 2d 210, 959 N.W.2d 351, 19-2095.
