As part of a private construction project, you’ll likely be exchanging payment for a signed lien waiver. If you’re working on a project in Illinois, it’s important to know that there isn’t a statutorily set lien waiver form like many other states use, so you need to pay attention to these three key details each time you sign a waiver.
Lien Waivers Must be by Express Agreement
There are two kinds of waivers a partial or final waiver of lien. Typically the GC requires you waive your lien rights in advance. You should not sign a partial or final lien waiver until you are paid or add express conditions to your waiver that states you will only waive your lien rights after you in fact get paid.
Generally, these lien waivers are conditional, meaning that they are enforceable only if all the conditions in the document are met. In the event that payment does not occur, or isn’t in the amount specified, then the waiver is not enforceable. Unconditional lien waivers that waive lien rights regardless of whether the other conditions are met are also allowed in Illinois, so you want to make sure you understand which type of waiver you’re signing. Be careful not to sign a waiver of lien by date if you weren’t paid for work through the date you waived your lien.
Lien Waivers Must be Signed After Work is Complete
By statute in Illinois, you cannot sign a lien waiver before you start work.
In Illinois, this rule means that lien waivers signed before work is complete are not valid and so a second lien waiver would need to be completed once payment occurs. However, since the document does not need to be notarized, it only has to be signed by both the paying party and the party releasing their right to file a mechanics lien.
Continue to Pay Attention to Lien Deadlines
Once you’ve signed a lien waiver form, you still want to track the deadline for filing an Illinois mechanics lien. If the waiver was conditional, in the event payment doesn’t go through or doesn’t match the details outlined in the lien waiver, you have to file your mechanics lien in a timely fashion to preserve your right to payment.
If you need help understanding how to set up business processes that make filing and tracking mechanics liens seamless, reach out to the team at National Lien & Bond. In addition to helping our clients review contracts, file, and track mechanics liens, we offer custom lien seminars for qualified construction management professionals in your company to ensure you have a clear understanding of the lien process and how you can leverage both your team and outside help to keep payments on track. To see if your company qualifies for a custom mechanics lien seminar, fill out a request now.
This blog is for educational purposes only and not intended for legal advice.
Frequently Asked Questions
What are the rules for lien waivers in Illinois?
Illinois mechanics lien waivers are governed by 770 ILCS 60/35 and common-law contract principles. Unlike California, Arizona, Texas, and other statutory-form states, Illinois does NOT require a specific statutory waiver form. Common-law waiver language is enforceable as long as: (1) the waiver is in writing; (2) signed by the claimant; (3) voluntary; (4) supported by consideration (typically the payment being received). Illinois courts construe waivers strictly against the party seeking to enforce — ambiguity is resolved in favor of preserving lien rights.
What is the difference between conditional and unconditional Illinois lien waivers?
A CONDITIONAL Illinois lien waiver releases mechanics lien rights ONLY IF and WHEN the payment described in the waiver actually clears the bank — if the check bounces or payment fails, lien rights survive. An UNCONDITIONAL Illinois lien waiver releases lien rights IMMEDIATELY upon signing, regardless of whether the payment is received. The difference is enormous: unconditional waivers signed before payment clears can leave the contractor with zero lien rights AND zero payment. Always sign conditional, never unconditional, until payment has cleared your bank.
Can I waive Illinois mechanics lien rights prospectively for future work?
Generally no. Illinois courts have invalidated prospective lien waivers — waivers signed at the start of a project purporting to release lien rights for all future work — under the principle that lien rights cannot be waived for unliquidated, future claims without specific consideration. Some construction contracts contain forward-looking waiver clauses; these are unenforceable in most Illinois cases. Even where prospective waivers might be enforceable, they are dangerous and should never be signed without consultation with Illinois construction-payment counsel.
When should I sign an Illinois lien waiver?
Safe Illinois waiver timing for unpaid contractors: (1) sign a CONDITIONAL waiver tied to a specific payment when receiving the payment; (2) wait for the payment to clear the bank; (3) only AFTER the payment clears, sign the UNCONDITIONAL waiver for that specific payment if requested. Never sign an unconditional waiver before payment clears. Never sign a final-payment waiver until retention is included in the final payment. Never sign blanket future-rights waivers without specific consideration.
What happens if I sign an Illinois final-payment waiver but the check bounces?
If you signed the CONDITIONAL final-payment waiver, your lien rights survive — the waiver was conditioned on payment clearing, and it didn't clear, so the waiver never took effect. You can still file the Claim of Lien (770 ILCS 60/7) within the 4-month deadline and pursue foreclosure (§ 60/9). If you signed the UNCONDITIONAL final-payment waiver, your lien rights are released regardless of whether the check cleared. Some Illinois cases set aside unconditional waivers under fraud or consideration-failure theories, but litigation cost is high — avoid signing unconditional before payment clears.
Does Hal Emalfarb review Illinois lien waivers for unpaid contractors?
Yes — Hal Emalfarb is admitted to practice in Illinois and his firm (Emalfarb Swan and Bain, Highland Park, IL) reviews Illinois lien waivers for unpaid contractors before signing. Hal has 30+ years of Illinois construction-payment experience. The review covers: (1) whether the waiver is conditional or unconditional; (2) whether the timing is safe (before or after payment clears); (3) whether the scope is limited to the specific payment; (4) whether the language attempts to release future-rights without specific consideration. The pre-signing review prevents the wave-before-payment-clears losses common in Illinois recovery.
How does National Lien & Bond help with Illinois lien waivers?
National Lien & Bond reviews Illinois lien waiver language for unpaid contractors BEFORE signing to ensure: (1) the waiver is properly conditioned on payment clearing; (2) the scope is limited to the specific payment being made; (3) the language does not waive future rights without specific consideration; (4) the waiver does not release rights against the wrong party. Hal Emalfarb's firm handles all Illinois-licensed engagements directly — no referral network. For projects in other states, NLB connects you with vetted construction-payment counsel admitted in that jurisdiction. Contact NLB for a free initial consultation.