Filing a mechanic’s lien in Georgia is a powerful tool for construction contractors and suppliers. A properly recorded lien creates leverage and often succeeds in compelling payment. But Georgia’s lien statutes are strictly construed, and even minor missteps can render a lien unenforceable—even where payment is unquestionably owed. This post begins a series that breaks down the key stages in preserving and enforcing Georgia lien rights.
NOTE ON H.B. 676: Compliance with Georgia’s lien statutes may become even more important if pending Georgia House Bill 676 is enacted, which imposes consequences on claimants who file liens “without substantial justification,” not in good faith, or “with malice or wrongful purpose.” See separate post on H.B. 676.
Before recording a lien, contractors and lower-tier subcontractors and suppliers should, at a minimum, confirm the following:
- Have You Complied with the Notice to Contractor Requirements?
Georgia’s lien statutes provide a mechanism for protecting owners and general contractors from liens filed by remote subcontractors or suppliers with whom they did not contract.
By filing a “Notice of Commencement” with the County Clerk where the Project is located, owners/general contractors can trigger an obligation for certain lower-tier subcontractors and suppliers to send a preliminary “Notice to Contractor” to preserve their lien rights. This two-step process provides a way for owners/general contractors to become aware of all potential lien claimants providing labor or materials to the project, so they can take steps to ensure payments are being properly applied during the course of the work.
Notice of Commencement: Within 15 days after work physically commences on the project, the owner (or general contractor) may file a “Notice of Commencement.” This notice must be recorded in the superior court in the county where the project is located and posted at the project site. The notice must contain basic information regarding the identity of the owner, the general contractor, the project location and legal description, and any construction lender or surety (if applicable). See O.C.G.A. § 44-14-361.5(b).
However, Georgia courts have held that compliance with the 15-day filing deadline is not a condition precedent to the effectiveness of a “Notice of Commencement.” A late-filed notice can still trigger the statutory “Notice to Contractor” requirement for liens arising after its filing. Beacon Med. Prods., LLC v. Travelers Cas. & Sur. Co. of Am., 665 S.E.2d 710, 714 (Ga. Ct. App. 2008).
Accordingly, lower-tier subcontractors and suppliers potentially impacted by a “Notice of Commencement” should continue to diligently check for its filing even after the 15-day deadline has already passed. Claimants can periodically check the county’s real estate records, but the better approach is to submit a written request to the general contractor for a copy of the notice. If the general contractor fails to provide a copy within 10 days of the request, the “Notice to Contractor” requirements are rendered inapplicable to the requesting party. Accordingly, claimants should document their written requests for a copy of the notice in a manner that generates proof of delivery.
Notice to Contractor: If the owner/general contractor filed a valid “Notice of Commencement” (even if it was filed “late” in some circumstances), lower-tier subcontractors and suppliers (i.e., those who were not hired directly by the general contractor) must then send a “Notice to Contractor” in compliance with Georgia law to preserve their lien rights. See O.C.G.A. § 44-14-361.5(a). To be clear, general contractors—and subcontractors who contracted directly with the general contractor—are not subject to this requirement.
This “Notice to Contractor” must be sent to both the owner and the general contractor at the addresses listed in the Notice of Commencement, and must include specified information, including (among other things) the lien claimant’s identity and the amount of its contract price.
Further, the notice must be sent within 30 days of the Notice of Commencement’s filing or the claimant’s first furnishing of labor or materials to the project—whichever is later. Failure to timely send a required Notice to Contractor will extinguish lien rights entirely, regardless of the underlying claim’s validity.
In summary, before filing a lien, any lower-tier subcontractor or supplier should confirm (1) whether the owner/general contractor filed a “Notice of Commencement” on the project; and (2) if so, whether the subcontractor/supplier subsequently timely filed a “Notice to Contractor.” These notice requirements are strictly enforced, and the failure to comply with them remains one of the most common—and costly—mistakes made by lower-tier subcontractors and suppliers.
- Are You Within the 90-Day Deadline?
In Georgia, a lien must be filed within 90 calendar days after the last date the lien claimant performed work, furnished services, or delivered materials. See O.C.G.A. § 44-14-361.1(a)(2). However, if the 90th day falls on a weekend or legal holiday, the deadline is extended to the next business day. See O.C.G.A. § 44-14-369.
Importantly, the 90-day period runs from the claimant’s own last furnishing—not from substantial completion of the overall project. Even “minor installation” or “repair work” performed after substantial completion may qualify as the last furnishing date. Cumberland Bridge Assocs., Ltd. v. Builders Steel Supply, Inc., 315 S.E.2d 484 (Ga. Ct. App. 1984) (upholding a jury’s determination that a lien was timely filed within 90 days of the contractor returning to the site to perform “repair work” and “minor installation”).
Lien claimants are nevertheless advised to file within 90 days of substantial completion because disputes over whether “repair work” (or other minor work) constitutes the last furnishing date are ordinarily submitted to the jury in Georgia—an inherently unpredictable process.
Thus, before filing, a lien claimant should (1) confirm the actual last day it furnished labor or materials; (2) ensure it has documentation of that date (e.g., daily reports, payroll data, delivery tickets, pay applications, etc.); and (3) verify that the 90-day deadline has not expired.
- Did You Sign a Lien Waiver?
Georgia, like many jurisdictions, provides statutory interim and final lien waiver forms that are commonly used on construction projects and routinely attached to pay applications.
Although Georgia law generally does not permit the waiver of lien rights before payment is received, the statutory lien waiver forms contain a significant trap. Under O.C.G.A. § 44-14-366, a statutory lien waiver becomes effective 90 days after it is signed—even if payment was never actually received. However, a claimant can avoid the harsh consequences of a signed lien waiver by timely filing an Affidavit of Nonpayment within that 90-day period.
Accordingly, before filing a lien, a claimant should confirm:
- Whether it signed any lien waivers;
- Whether payment was actually received; and
- Whether more than 90 days passed without filing an Affidavit of Nonpayment.
Filing a lien after a waiver has become effective—whether through payment or by operation of the 90-day rule—can result in dismissal of the lien and potential liability.
Disclaimer: This blog post is provided for informational purposes only and does not constitute legal advice. Parties considering recording or enforcing a lien are strongly encouraged to consult with experienced legal counsel to ensure compliance with applicable statutory requirements.
ShareholderJohn Guin is a Shareholder in the firm’s Construction Litigation and Commercial Litigation practice groups. His practice focuses on representing general contractors, subcontractors, and others (including owners and ...