44-14-360
Definitions
44-14-361 Persons Who Have Special Lien Rights
44-14-361.1 Creation and Enforcement of Lien Rights; Limitations;
Priorities; Parties; Amount of Lien
44-14-361.2 Lien Waivers; Payments
44-14-361.3 Preliminary Notice of Lien Rights
44-14-361.4 Waiver; Demand for Lien
44-14-361.5 Notice of Commencement
44-14-362 Cancellation of Preliminary Notice
44-14-363 Special Lien on Personal Property; Recording
44-14-364 Release Bond
44-14-365 Partnership; Corporations; Associations
44-14-366 Advance Waivers Void; Interim Waiver and Release Upon
Payment; Unconditional Waiver and Release Upon Final Payment; Acknowledgment
of Payment; Affidavit of Nonpayment
OFFICIAL CODE OF GEORGIA
44-14-360 Definitions
As used in this part, the term:
(1) “Contractor” means a contractor having privity of
contract with the owner of the real estate.
(2) “Land surveyor” means the same as the definition
thereof in Code Section 43-15-2.
(3) “Materials,” in addition to including those items
for which liens are already permitted under this part, means tools,
appliances, machinery, or equipment used in making improvements
to the real estate, to the extent of the reasonable value or the
contracted rental price, whichever is greater, of such tools, appliances,
machinery, or equipment.
(4) “Materialmen” means all persons furnishing the materials,
tools, appliances, machinery, or equipment included in the definition
of materials in paragraph (3) of this Code section.
(5) “Professional engineer” means the same as the definition
thereof in Code Section 43-15-2.
(6) “Registered forester” means the same as the definition
of such term in Code Section 12-6-41.
(7) “Registered land surveyors” and “registered
professional engineers” means land surveyors or professional
engineers who are registered as land surveyors or professional engineers
under Chapter 15 of Title 43 at the time of performing, rendering,
or furnishing services protected under this part.
(8) “Residential property” means single-family and two-family,
three-family, and four-family residential real estate.
(9) “Subcontractor” means, but is not limited to, subcontractors
having privity of contract with the contractor.
44-14-361
Persons Who Have Special Lien Rights
(a) The following persons shall each have a special lien
on the real estate, factories, railroads, or other property for
which they furnish labor, services, or materials:
(1) All mechanics of every sort who have taken no personal security
for work done and material furnished in building, repairing, or
improving any real estate of their employers;
(2) All contractors, all subcontractors and all materialmen furnishing
material to subcontractors, and all laborers furnishing labor to
subcontractors, materialmen, and persons furnishing material for
the improvement of real estate;
(3) All registered architects furnishing plans, drawings, designs,
or other architectural services on or with respect to any real estate;
(4) All registered foresters performing or furnishing services on
or with respect to any real estate;
(5) All registered land surveyors and registered professional engineers
performing or furnishing services on or with respect to any real
estate;
(6) All contractors, all subcontractors and materialmen furnishing
material to subcontractors, and all laborers furnishing labor for
subcontractors for building factories, furnishing material for factories,
or furnishing machinery for factories;
(7) All machinists and manufacturers of machinery, including corporations
engaged in such business, who may furnish or put up any mill or
other machinery in any county or who may repair the same;
(8) All contractors to build railroads; and
(9) All suppliers furnishing rental tools, appliances, machinery,
or equipment for the improvement of real estate.
(b) Each special lien specified in subsection (a) of this Code section
may attach to the real estate for which the labor, services, or
materials were furnished if they are furnished at instance of the
owner, contractor, or some person acting for the owner or contractor.
44-14-361.1 Creation and Enforcement of Lien
Rights; Limitations; Priorities; Parties; Amount of Lien
(a) To make good the liens specified in paragraphs (1) through
(8) of subsection (a) of Code Section 44-14-361, they must be created
and declared in accordance with the following provisions, and on
failure of any of them the lien shall not be effective or enforceable:
(1) A substantial compliance by the party claiming the lien with
his contract for building, repairing, or improving; for architectural
services furnished; for registered forester services furnished or
performed; for registered land surveying or registered professional
engineering services furnished or performed; or for materials or
machinery furnished or set up;
(2) The filing for record of his claim of lien within three months
after the completion of the work, the furnishing of the architectural
services, or the furnishing or performing of such surveying or engineering
services or within three months after the material or machinery
is furnished in the office of the clerk of the superior court of
the county where the property is located, which claim shall be in
substance as follows:
“A.B., a mechanic, contractor, subcontractor, materialman,
machinist, manufacturer, registered architect, registered forester,
registered land surveyor, registered professional engineer, or other
person (as the case may be) claims a lien in the amount of (specify
the amount claimed) on the house, factory, mill, machinery, or railroad
(as the case may be) and the premises or real estate on which it
is erected or built, of C.D. (describing the houses, premises, real
estate, or railroad), for satisfaction of a claim which became due
on (specify the date the claim was due) for building, repairing,
improving, or furnishing material (or whatever the claim may be).”
At the time of filing for record of his claim of lien, the lien
claimant shall send a copy of the claim of lien by registered or
certified mail to the owner of the property or the contractor, as
the agent of the owner;
(3) The commencement of an action for the recovery of the amount
of his claim within 12 months from the time the same shall become
due. In addition, within 14 days after filing such action, the party
claiming the lien shall file a notice with the clerk of the superior
court of the county wherein the subject lien was filed. The notice
shall contain a caption referring to the then owner of the property
against which the lien was filed and referring to a deed or other
recorded instrument in the chain of title of the affected property.
The notice shall be executed, under oath, by the party claiming
the lien or by his attorney of record. The notice shall identify
the court wherein the action is brought; the style and number of
the action, including the names of all parties thereto; the date
of the filing of the action; and the book and page number of the
records of the county wherein the subject lien is recorded in the
same manner in which liens specified in Code Section 44-14-361 are
filed. The clerk of the superior court shall enter on the subject
lien so referred to the book and page on which the notice is recorded
and shall index such notice in the name of the then purported owner
as shown by the caption contained in such notice. A separate lis
pendens notice need not be filed with the commencement of this action;
and
(4) In the event any contractor or subcontractor procuring material,
architect’s services, registered forester’s services,
registered land surveyor’s services, or registered professional
engineer’s services, labor, or supplies for the building,
repairing, or improving of any real estate, building, or other structure
shall abscond or die or leave the state within 12 months from the
date such services, labor, supplies, or material are furnished to
him, so that personal jurisdiction cannot be obtained on the contractor
or subcontractor in an action for the services, material, labor,
or supplies, or if the contractor or subcontractor shall be adjudicated
a bankrupt, or if, after the filing of an action, no final judgment
can be obtained against him for the value of such material, services,
labor, or supplies because of his death or adjudication in bankruptcy,
then and in any of these events, the person or persons furnishing
material, services, labor, and supplies shall be relieved of the
necessity of filing an action or obtaining judgment against the
contractor or subcontractor as a prerequisite to enforcing a lien
against the property improved by the contractor or subcontractor.
Subject to Code Section 44-14-361, the person or persons furnishing
material, services, labor, and supplies may enforce the lien directly
against the property so improved in an action against the owner
thereof, if filed within 12 months from the time the lien becomes
due, with the judgment rendered in any such proceeding to be limited
to a judgment in rem against the property improved and to impose
no personal liability upon the owner of the property; provided,
however, that in such action for recovery, the owner of the real
estate improved, who has paid the agreed price or any part of same,
may set up the payment in any action brought and prove by competent
and relevant evidence that the payments were applied as provided
by law, and no judgment shall be rendered against the property improved.
Within 14 days after filing such action, the party claiming the
lien shall file a notice with the clerk of the superior court of
the county wherein the subject lien was filed. The notice shall
contain a caption referring to the then owner of the property against
which the lien was filed and referring to a deed or other recorded
instrument in the chain of title of the affected property. The notice
shall be executed, under oath, by the party claiming the lien or
by his attorney of record. The notice shall identify the court wherein
the action is brought; the style and number of the action, including
the names of all parties thereto; the date of the filing of the
action; and the book and page number of the records of the county
wherein the subject lien is recorded in the same manner in which
liens specified in Code Section 44-14-361 are filed. The clerk of
the superior court shall enter on the subject lien so referred to
the book and page on which the notice is recorded and shall index
such notice in the name of the then purported owner as shown by
the caption contained in such notice. A separate lis pendens notice
need not be filed with the commencement of this action.
(b) As between themselves, the liens provided for in Code Section
44-14-361 shall rank according to the date filed; but all of the
liens mentioned in this Code section for repairs, building, or furnishing
materials or services, upon the same property, shall, as to each
other, be of the same date when declared and filed for record within
three months after the work is done or before that time.
(c) The liens specified in Code Section 44-14-361 shall be inferior
to liens for taxes, to the general and special liens of laborers,
to the general lien of landlords of rent when a distress warrant
is issued out and levied, to claims for purchase money due persons
who have only given bonds for titles, and to other general liens
when actual notice of the general lien of landlords and others has
been communicated before the work was done or materials or services
furnished; but the liens provided for in Code Section 44-14-361
shall be superior to all other liens not excepted by this subsection.
(d) In any proceeding brought by any materialman, by any mechanic,
by any laborer, by any subcontractor, or by any mechanic of any
sort employed by any subcontractor or by any materialmen furnishing
material to any subcontractor, or by any laborer furnishing labor
to any subcontractor, to enforce such a lien, the contractor having
a direct contractual relationship with the subcontractor shall not
be a necessary party; but he may be made a party. In any proceedings
brought by any mechanic employed by any subcontractor, by any materialmen
furnishing material to any subcontractor, or by any laborer furnishing
labor to any subcontractor, the subcontractor shall not be a necessary
party; but he may be made a party. The contractor or subcontractor
or both may intervene in the proceedings at any time before judgment
for the purpose of resisting the establishment of the lien or of
asserting against the lienor any claim of the contractor or subcontractor
growing out of or related to the transaction upon which the asserted
lien is based.
(e) In no event shall the aggregate amount of liens set up by Code
Section 44-14-361 exceed the contract price of the improvements
made or services performed.
44-14-361.2 Lien Waivers; Payments
(a) The special lien specified in subsection (a) of Code
Section 44-14-361 shall be dissolved if the owner, purchaser from
owner, or lender providing construction or purchase money or any
other loan secured by real estate shows that:
(1) The lien has been waived in writing by lien claimant; or
(2)(A) They or any of them have obtained the sworn written statement
of the contractor or person other than the owner at whose instance
the labor, services, or materials were furnished, or the owner when
conveying title in a bona fide sale or loan transaction, that the
agreed price or reasonable value of the labor, services, or materials
have been paid or waived in writing by the lien claimant; and
(B) When the sworn written statement was obtained or given as a
part of a transaction:
(i) Involving a conveyance of title in a bona fide sale;
(ii) Involving a loan in which the real estate is to secure repayment
of the loan; or
(iii) Where final disbursement of the contract price is made by
the owner to the contractor there was not of record, at the time
of the settlement of the transaction a valid preliminary notice
or claim of lien which had not been previously canceled, dissolved,
or expired.
(b) As used in paragraph (2) of subsection (a) of this Code section,
the term:
(1) “Person other than the owner” shall not include
a subcontractor.
(2) “Final disbursement” of the contract price means
payment of the agreed price between the owner and contractor for
the improvements made upon the real estate or the reasonable value
of the labor, services, and materials incorporated in the improvements
upon the real estate and shall include payment of the balance of
the contract price to an escrow agent.
44-14-361.3
Preliminary Notice of Lien Rights
(a) Prior to filing a claim of lien, a person having a lien
under paragraphs (1) through (8) of subsection (a) of Code Section
44-14-361 may at such person’s option file a preliminary notice
of lien rights. The preliminary notice of lien rights in order to
be effective shall:
(1) Be filed with the clerk of superior court of the county in which
the real estate is located within 30 days after the date a party
delivered any materials or provided any labor or services for which
a lien may be claimed;
(2) State the name, address, and telephone number of the potential
lien claimant;
(3) State the name and address of the contractor or other person
at whose instance the labor, services, or materials were furnished;
(4) State the name of the owner of the real estate and include a
description sufficient to identify the real estate against which
the lien is or may be claimed; and
(5) Include a general description of the labor, services, or materials
furnished or to be furnished.
(b) A party filing a preliminary notice of lien rights except a
contractor shall, within seven days of filing the notice, send by
registered or certified mail a copy of the notice to the contractor
on the property named in the notice or to the owner of the property.
The lien claimant may rely on the building permit issued on the
property for the name of the contractor.
(c) The clerk of each superior court shall maintain within the records
of that office a record separate from all other real estate records
in which preliminary notices specified in subsection (a) of this
Code section and affidavits specified in subsection (c) of Code
Section 44-14-361.4 shall be filed. Each such notice and affidavit
shall be indexed under the name of the owner as contained in the
preliminary notice. The clerk shall collect a filing fee of $5.00
for the filing of each preliminary notice.
(d) A person having a lien under paragraphs (1) through (8) of subsection
(a) of Code Section 44-14-361 may enforce the lien without filing
a preliminary notice of lien.
44-14-361.4
Waiver; Demand for Lien
(a) A preliminary notice of lien rights filed pursuant to
Code Section 44-14-361.3 shall be dissolved if it is canceled and
a preliminary notice also expires and is dissolved under any of
the following conditions:
(1) The lien has been waived in writing by the lien claimant;
(2) The time has expired for filing the claim of lien as required
in Code Section 44-14-361.1;
(3) On residential property, a demand for filing of a claim of lien
has been sent by registered or certified mail to the potential lien
claimant at the address specified in the preliminary notice of lien
rights and at least ten days have elapsed since the date of such
mailing without the filing of a claim of lien; or
(4) On all property except residential property, a demand for filing
of a claim of lien has been sent by registered or certified mail
to the potential lien claimant at the address specified in the preliminary
notice of lien rights and at least ten days have elapsed since the
date of such mailing without the filing of a claim of lien; provided,
however, the demand for filing of a claim of lien shall not be sent
until the contractor’s contract is substantially complete
or until the potential lien claimant’s contract has been terminated
or the potential lien claimant has abandoned the contract.
(b) A demand for filing of claim of lien shall contain the same
information required to be contained in the preliminary notice of
lien rights and shall contain the following statement addressed
to the potential lien claimant:
“This demand was mailed to you on __________ pursuant to Code
Section 44-14-361.4. You are notified that unless you file a claim
of lien with respect to this claim on or before the tenth day after
said date of mailing your right to claim a lien will be dissolved.”
(c) If a demand for filing of a claim of lien is mailed as provided
in this Code section and no claim of lien is filed within ten days
after said date of mailing, the preliminary notice of lien rights
may be canceled as provided in this subsection. In order to obtain
cancellation, the person who mailed the demand or his attorney shall
file with the clerk of superior court a copy of the demand and his
or her affidavit that the demand was mailed as provided in paragraph
(3) or (4) of subsection (a) of this Code section and that ten days
have elapsed since said date of mailing without the filing of a
claim of lien by the potential lien claimant. Upon such filing,
the clerk of superior court shall cancel of record the preliminary
notice of lien rights.
44-14-361.5 Notice of Commencement
(a) To make good the liens specified in paragraphs (1),
(2), and (6) through (9) of subsection (a) of Code Section 44-14-361,
any person having a right to a lien who does not have privity of
contract with the contractor and is providing labor, services, or
materials for the improvement of property shall, within 30 days
from the filing of the Notice of Commencement or 30 days following
the first delivery of labor, services, or materials to the property,
whichever is later, give a written Notice to Contractor as set out
in subsection (c) of this Code section to the owner or the agent
of the owner and to the contractor for a project on which there
has been filed with the clerk of the superior court a Notice of
Commencement setting forth therein the information required in subsection
(b) of this Code section.
(b) Not later than 15 days after the contractor physically commences
work on the property, a Notice of Commencement shall be filed by
the owner, the agent of the owner, or by the contractor with the
clerk of the superior court in the county in which the project is
located. A copy of the Notice of Commencement shall be posted on
the project site. The Notice of Commencement shall include:
(1) The name, address, and telephone number of the contractor;
(2) The name and location of the project being constructed and the
legal description of the property upon which the improvements are
being made;
(3) The name and address of the true owner of the property;
(4) The name and address of the person other than the owner at whose
instance the improvements are being made, if not the true owner
of the property;
(5) The name and the address of the surety for the performance and
payment bonds, if any; and
(6) The name and address of the construction lender, if any.
The contractor shall be required to give a copy of the Notice of
Commencement to any subcontractor, materialman, or person who makes
a written request of the contractor. Failure to give a copy of the
Notice of Commencement within ten calendar days of receipt of the
written request from the subcontractor, materialman, or person shall
render the provision of this Code section inapplicable to the subcontractor,
materialman, or person making the request.
(c) A Notice to Contractor shall be given to the owner or the agent
of the owner and to the contractor at the addresses set forth in
the Notice of Commencement setting forth:
(1) The name, address, and telephone number of the person providing
labor, services, or materials;
(2) The name and address of each person at whose instance the labor,
services, or materials are being furnished;
(3) The name of the project and location of the project set forth
in the Notice of Commencement; and
(4) A description of the labor, services, or materials being provided
and, if known, the contract price or anticipated value of the labor,
services, or materials to be provided or the amount claimed to be
due, if any.
(d) The failure to file a Notice of Commencement shall render the
provisions of this Code section inapplicable. The filing of a Notice
of Commencement shall not constitute a cloud, lien, or encumbrance
upon or defect to the title of the real property described in the
Notice of Commencement, nor shall it alter the aggregate amounts
of liens allowable, nor shall it affect the priority of any loan
in which the property is to secure payment of the loan filed before
or after the Notice of Commencement, nor shall it affect the future
advances under any such loan. Nothing contained in this Code section
shall affect the provisions of Code Section 44-14-361.2.
(e) The clerk of each superior court shall file the Notice of Commencement
within the records of that office and maintain an index separate
from other real estate records or an index with the preliminary
notices specified in subsection (a) of Code Section 44-14-361.3.
Each such Notice of Commencement shall be indexed under the name
of the true owner and the contractor as contained in the Notice
of Commencement.
44-14-362 Cancellation of Preliminary Notice
(a) Upon final payment after all labor, services, or materials
have been furnished, a person who has filed a preliminary notice
of lien rights shall either deliver a cancellation of the preliminary
notice of lien rights at the time of final payment or cause the
notice to be canceled of record within ten days after final payment.
Any person who fails to so cancel a preliminary notice shall be
liable to the owner for all actual damages, costs, and reasonable
attorney’s fees incurred by the owner in having the preliminary
notice canceled.
(b) The cancellation required under this Code section shall be in
the following form:
Clerk, Superior Court of ________ County
You are authorized and directed to cancel of record the preliminary
notice of lien rights which we filed on the property owned by (state
name of owner) on (give date) and recorded by you in Book _____,
Page _____, of preliminary notices kept by you.
This ______ day of ______________, 19__.
_____________________Lien claimant or attorney
44-14-363
Special Lien on Personal Property; Recording
(a) All mechanics of every sort shall have a special lien
on personal property for work done and material furnished in manufacturing
or repairing the personal property and for storage of the personal
property after its manufacture or repair, which storage begins accruing
after 30 days’ written notice to the owner of the fact that
storage is accruing and of the daily dollar amount thereof; and
said notice shall be mailed to the owner by certified mail addressed
to the owner at his last known address. Such special liens may be
asserted by the retention of the personal property or the mechanic
may surrender the personal property and give credit when the lien
is enforced in accordance with Code Section 44-14-550; and if such
special liens are asserted by retention of the personal property,
the mechanic shall not be required to surrender the property to
the holder of a subordinate security interest or lien. Such liens
shall be superior to all liens except liens for taxes and, except
as provided in subsection (2) of Code Section 11-9-310, such other
liens as the mechanic may have had actual notice of before the work
was done or material furnished.
(b) The maximum amount of storage that may be charged shall be $1.00
per day. Nothing contained in this Code section shall allow a fee
for storage to be charged on any item with a fair market value in
excess of $200.00. Storage charges pursuant to this Code section
shall not apply to motor vehicles now or hereafter covered by Chapter
3 of Title 40 nor shall the storage fee be charged if there is a
bona fide dispute between the customer and the mechanic as to the
manner of repair or the charges for repair.
(c)(1) When possession of the property is surrendered to the debtor,
the mechanic shall record his claim of lien within 90 days after
the work is done and the material is furnished or, in the case of
repairs made on or to aircraft or farm machinery, within 180 days
after the work is done and the material is furnished. The claim
of lien shall be recorded in the office of the clerk of the superior
court of the county where the owner of the property resides. The
claim shall be in substance as follows:
“A.B., mechanic, claims a lien on _______ (here describe the
property) of C.B., for work done, material furnished, and storage
accruing (as the case may be) in manufacturing, repairing, and storing
(as the case may be) the same.”
(2) If possession of the personal property subject to a special
lien as provided in this Code section is surrendered to the debtor
and if such special lien is not preserved by recording the claim
of lien as provided in paragraph (1) of this subsection, the mechanic
acquires a special lien on other personal property belonging to
the debtor which comes into the possession of the mechanic, except
that this sentence shall not apply to consumer goods which are being
used by a consumer for personal, family, or household purposes or
which have been bought by a consumer for use for personal, family,
or household purposes. The special lien created by this paragraph
shall be subject to the provisions of this Code section as to foreclosure
and recording.
44-14-364
Release Bond
(a) When any person entitled under this part to claim a
lien against any real estate located in this state files his lien
in the office of the clerk of the superior court of the county in
which the real estate is located, the owner of the real estate or
the contractor employed to improve the property may, before or after
foreclosure proceedings are instituted, discharge the lien by filing
a bond in the office of that clerk. The bond shall be conditioned
to pay to the holder of the lien the sum that may be found to be
due the holder upon the trial of any action that may be filed by
the lienholder to recover the amount of his claim within 12 months
from the time the claim becomes due. The bond shall be in double
the amount claimed under that lien and shall be either a bond with
good security approved by the clerk of the court or a cash bond,
except in cases involving a lien against residential property, in
which event the bond shall be in the amount claimed under the lien.
Upon the filing of the bond provided for in this Code section, the
real estate shall be discharged from the lien. With respect to property
bonds, the clerk shall not accept any real property bond unless
the real property is scheduled in an affidavit attached thereto
setting forth a description of the property and indicating the record
owner thereof, including any liens and encumbrances and amounts
thereof, the market value, and the value of the sureties’
interest therein, which affidavit shall be executed by the owner
or owners of the interest; the bond and affidavit shall be recorded
in the same manner and at the same cost as other deeds of real property.
So long as the bond exists, it shall constitute a lien against the
property described in the attached affidavit.
(b) The clerk of the superior court shall have the right to rely
upon the amount specified in the claim of lien in determining the
sufficiency of any bond to discharge under this Code section. The
failure to specify both the amount claimed due under the lien and
the date said claim was due shall result in such lien not constituting
notice for any purposes.
44-14-365
Partnership; Corporations, Associations
If services are performed or furnished with respect to any
real estate by any registered architect, registered forester, registered
land surveyor, or registered professional engineer who is a member
of a partnership or who is an agent or employee of a corporation
or an association and the contract for the services is made for
or on behalf of the owner with the partnership or corporation or
association, the partnership, corporation, or association shall
be entitled to all the privileges and benefits of Code Sections
44-14-361 and 44-14-362, just as if the partnership, corporation,
or association was a registered architect, a registered forester,
a registered professional engineer, or a registered land surveyor.
44-14-366 Advance Waivers Void; Interim Waiver
and Release Upon Payment; Unconditional Waiver and ReleaseUpon Final
Payment; Acknowledgment of Payment; Affidavit of Nonpayment
(a) A right to claim a lien or to claim upon a bond may
not be waived in advance of furnishing of labor, services, or materials.
Any purported waiver or release of lien or bond claim or of this
Code section executed or made in advance of furnishing of labor,
services, or materials is null, void, and unenforceable.
(b) No oral or written statement by the claimant purporting to waive,
release, impair, or otherwise adversely affect a lien or bond claim
is enforceable or creates an estoppel or impairment of claim of
lien or claim upon a bond unless:
(1) It is pursuant to a waiver and release form duly executed by
claimant prescribed below; and
(2) The claimant has received payment for the claim as set forth
in subsection (f) of this Code section.
(c) When a claimant is requested to execute a waiver and release
in exchange for or in order to induce payment other than final payment,
the waiver and release must follow substantially the following form,
and the priority of such claimant’s lien rights, except as
to retention, shall thereafter run from the day after the date specified
in such Interim Waiver and Release upon Payment form:
INTERIM WAIVER AND RELEASE
UPON PAYMENT
STATE OF GEORGIA
COUNTY OF __________
The undersigned mechanic and/or materialman has been employed by
_______________________(name of contractor) to furnish _______________________
(describe materials and/or labor) for the construction of improvements
known as _______________________ (title of the project or building)
which is located in the City of______________, County of ______________,
and is owned by _______________________ (name of owner) and more
particularly described as follows:
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY
USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT,
BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
Upon the receipt of the sum of $__________, the mechanic and/or
materialman waives and releases any and all liens or claims of liens
it has upon the foregoing described property through the date of
_______________________ (date) and excepting those rights and liens
that the mechanic and/or materialman might have in any retained
amounts, on account of labor or materials, or both, furnished by
the undersigned to or on account of said contractor for said building
or premises.
Given under hand and seal this ______ day of ______________, 19__.
_________________(Seal)
______________________________________________(Witness)
_______________________(Address)
Provided, however, that the failure to correctly complete any of
the blank spaces in the above form shall not invalidate said form
so long as the subject matter of said release may reasonably be
determined.
(d) When a claimant is requested to execute a waiver and release
in exchange for or in order to induce payment of final payment,
the waiver and release must follow substantially the following form:
UNCONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT
STATE OF GEORGIA
COUNTY OF __________
The undersigned mechanic and/or materialman has been employed by
_______________________ (name of contractor) to furnish _______________________
(describe materials and/or labor) for the construction of improvements
known as _______________________ (title of the project or building)
which is located in the City of ______________, County of ________,
and is owned by _________________________ (name of owner) and more
particularly described as follows:
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY
USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT,
BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
Upon the receipt of the sum of $__________, the mechanic and/or
materialman waives and releases any and all liens or claims of liens
or any right against any labor and/or material bond it has upon
the foregoing described property. Given under hand and seal this
______ day of ______________, 20__.
_________________(Seal)
______________________________________________(Witness)
______________________(Address)
NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT
YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS
ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN
PAID. IF YOU HAVE NOT YET BEEN PAID, USE A CONDITIONAL RELEASE FORM.
Provided, however, that the failure to correctly complete any of
the blank spaces in the above form shall not invalidate said form
so long as the subject matter of said release may reasonably be
determined.
(e) Nothing contained in this Code section shall affect:
(1) The enforceability of any subordination of lien rights by a
potential lien claimant to the rights of any other party which may
have or acquire an interest in all or any part of the real estate,
factories, railroads, or other property for which the potential
lien claimant has furnished labor, services, or material, even though
such subordination is entered into in advance of furnishing labor,
services, or material and even though the claimant has not actually
received payment in full for its claim;
(2) The enforceability of any waiver of lien rights given in connection
with the settlement of a bona fide dispute concerning the amount
due the lien claimant for labor, services, or material which have
already been furnished;
(3) The validity of a cancellation or release of a recorded claim
of lien or preliminary notice of lien rights; or
(4) The provisions of paragraph (2) of subsection (a) of Code Section
44-14-361.2, paragraphs (3) and (4) of subsection (a) and subsections
(b) and (c) of Code Section 44-14-361.4, or Code Section 44-14-364.
(f)(1) When a waiver and release provided for in this Code section
is executed by the claimant, it shall be binding against the claimant
for all purposes, subject only to payment in full of the amount
set forth in the waiver and release.
(2) Such amounts shall conclusively be deemed paid in full upon
the earliest to occur of:
(A) Actual receipt of funds;
(B) Execution by the claimant of a separate written acknowledgement
of payment in full; or
(C) Thirty days after the date of the execution of the waiver and
release, unless prior to the expiration of said 30 day period the
claimant files a claim of lien or files in the county in which the
property is located an Affidavit of Nonpayment, using substantially
the following form:
AFFIDAVIT OF NONPAYMENT UNDER O.C.G.A. SECTION 44-14-366
STATE OF GEORGIA
COUNTY OF ________
The undersigned mechanic and/or materialman has been employed by
_______________________ (name of contractor) to furnish _______________________
(describe materials and/or labor) for the construction of improvements
known as _______________________ (title of the project or building)
which is located in the City of ______________, County of _____________,
and is owned by _______________________ (name of owner) and more
particularly described as follows:
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY
USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT,
BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
Pursuant to O.C.G.A. Section 44-14-366 the undersigned executed
a lien waiver and release with respect to this property dated ______________,
19__. The amount set forth in said waiver and release($__________)
has not been paid, and the undersigned hereby gives notice of such
nonpayment. The above facts are sworn true and correct by the undersigned,
this ______ day of ______________, 20__.
____________________(SEAL)
Claimant’s Signature
Sworn to and executed in the presence of:
_____________________Witness
_____________________Notary Public
(3) A claimant who is paid, in full, the amount set forth in the
waiver and release form after filing an Affidavit of Nonpayment
shall upon request execute in recordable form an affidavit swearing
that payment in full has been received. Upon recordation thereof
in the county in which the Affidavit of Nonpayment was recorded,
the Affidavit of Nonpayment to which it relates shall be deemed
void.
(4) Nothing in this Code section shall shorten the time within which
to file a claim of lien.
(5) A waiver and release provided in this Code section shall be
suspended upon filing of an Affidavit of Nonpayment until payment
in full has been received.
(6) The claimant may rely upon the information contained in the
waiver and release form when completing for filing the Affidavit
of Nonpayment or claim of lien. |
