• Lien waivers in a contract are enforceable against parties to that contract, it unlikely that such provisions are enforceable against lower tier subcontractors and suppliers.
• Once a valid waiver is made, it can operate both prospectively and retrospectively. Therefore, it is essential to review the terms of the waiver, which may only waive current or past lien rights, but may also waive future rights.
• "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.
• Ohio Rev. Code § 4113.62(E): "Pay if paid" contract provisions will not prevent the subcontractor from filing a mechanic's lien.

Retainage Provisions

Public

• The maximum rate of retainage is 8 percent of the labor estimates prepared by the contractor and approved by the architect/engineer. When 50 percent of the project is complete, no retainage may be withheld. OHIO REV. CODE ANN. § 153.12.19 Retained funds are to be placed in an escrow account with interest accruing to the contractor. Retainage and interest are paid to the contractor upon final completion and acceptance of the work. OHIO REV. CODE ANN. § 153.13. See also OHIO REV. CODE ANN. § 4113.61..

Private

• A contractor may reduce the amount paid by any retainage provision contained in a contract, invoice or purchase order between the contractor and the subcontractor and may withhold any amounts that may be necessary to resolve disputes. OHIO REV. CODE ANN. § 4113.61(A)(1). This section, does not apply to any construction of single-, two-, or three-family detached dwelling houses. OHIO REV. CODE ANN. § 4113.61(C).