2023 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.
A lien waiver satisfies each element of a contract; accordingly, contract principles apply to its interpretation. In this case, consistent with the principle that handwritten terms control over a form's printed provisions, the handwritten term “partial" prevailed over the conflicting language in the printed body of the document waiving all lien rights to date, and resolving that conflict left no ambiguity as to whether the document was a full or partial waiver. Great Lakes Excavating, Inc. v. Dollar Tree Stores, Inc., 2022 WI 44, 402 Wis. 2d 311, 976 N.W.2d 506, 19-2095.
A waiver can be limited to a dollar amount. Sub. (1) specifies only that a partial lien waiver must be specific and express. In this case, the partial lien waiver satisfied sub. (1) because it waived the subcontractor's lien rights only in the amount of $33,448, an amount representing the “particular portion" of the work to which the waiver applied. Great Lakes Excavating, Inc. v. Dollar Tree Stores, Inc., 2022 WI 44, 402 Wis. 2d 311, 976 N.W.2d 506, 19-2095.
