The Contractor’s Affidavit triggers the greenlight for payment, so that your payment is not for the birds.
The Contractor’s Affidavit: Definition and Drafting
In my last blog, I explained the importance of the Waiver of Lien. Specifically, I stated that the Waiver of
Lien is presented by the contractor, sub-contractors and materialmen to support their respective payout
requests for labor and materials provided at a project. I also emphasized that the Waiver is a legal
relinquishment by the contractor and sub-contractors of their right to record a mechanic’s lien against
the construction project for any unpaid labor or materials provided as of the date of the Waiver.
The Waiver of Lien is printed on the top half of a document that has a corresponding Contractor’s
Affidavit on the lower half of the form. This blog will explain the purpose of this Contractor’s Affidavit
and will specify the information that must be included in the document.
To start, the Contractor’s Affidavit is a sworn statement that is notarized and signed by the contractor
or sub-contractor who submits it in support of a payout request. The purpose of the document is to
identify the contractor and its suppliers who have provided labor and materials to the project, and who
each have statutory lien rights that must be released when a payout is made.
The content of the form is similar to the Contractor’s Sworn Statement in that the contractor is required
to state the original contract amount, the amount paid to date to said contractor and the amount of the
payout being requested. This payout request in the Contractor’s Affidavit should match the
corresponding dollar amount that is specified in the Waiver of Lien in the top half of the document. But
in addition, the Contractor’s Affidavit requires that the Contractor identify his supplier and identify his
material contract amount and the amount of the material contract that has been paid and is about to be
paid. Similar to the Waiver of Lien, the Contractor’s Affidavit also requires that any claims for Extra work
have be specified on the claim will be forfeited. The form also requires that all material payout requests
must be accompanied with a corresponding Materialmen’s Waiver or an expense statement by the
Contractor that “All materials were taken from contractor’s paid stack inventory and were delivered to
the project site in contractor-owned vehicles.”
After you fill out each section, sign and notarize the affidavit, you can then submit this form to the
property owner or escrow agent for payment.
One Final Note
The construction paperwork is a critical safeguard and should always be examined carefully. So before
you sign any agreements, it’s always in your best interest to have an attorney look over the documents
and advise you on the most appropriate route to take.
Next time, I’ll explain the value of change orders.