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Massachusetts Waivers

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Massachusetts Waivers


  • An owner or contractor cannot by any term of the contract, or otherwise, waive or impair the lien rights of others.
  • Contractual provisions and forms purporting to bar or waive the recording or enforcement of mechanic’s liens are against public policy, void, and thus unenforceable. Mass. Gen. L. c. 254, § 32.
  • Contractual provisions and forms purporting to bar or waive the recording or enforcement of bond claims rights (public construction) are against public policy, void, and thus unenforceable.  Costa v. Brait Builders Corp 2012.  
  • "Paid if Paid" is enforced if explicit.
  • "Pay when Paid" suggests time for payment.
  • Pay-when-paid clause in the subcontract or purchase order does not create a condition precedent to payment. A Pay-if-paid clause would create a condition precedent if the language were sufficiently clear.

    • Retainage Provisions

    Public

    • On all projects, the rate of retainage may not exceed 5 percent of the approved amount of a periodic payment. The awarding authority may also retain an amount based on its estimate of the fair value of its claims against the contractor. Not later than 65 days after each subcontractor (as defined by statute) substantially completes its work, the subcontractor is entitled to receive its full subcontract balance, less the estimated cost of completing and correcting any unsatisfactory work, and the awarding authority is to pay such amount to the general contractor. Upon achieving substantial completion of a building contract, the general contractor is entitled to its full balance, less the authority's estimated cost of completion/correction. Upon the general contractor's substantial completion of other public works (roads, bridges, etc.), the awarding authority may also hold 1 percent retainage, pending completion of the entire work The penalty for the awarding authority's nonpayment is that the wrongfully withheld amounts will earn interest at 3 percent above the rediscount rate charged by the Federal Reserve Bank of Boston. MASS. GEN. LAWS c. 30 §§ 39F, G and K.