Don’t miss the window: Navigating Georgia’s high-stakes lien procedures 

Georgia’s two-step process for pre-lien notices and lien waivers can challenge even the most experienced credit professionals. Missing any key deadline can result in a complete loss of lien rights, regardless of the money owed on construction projects. For example, failing to serve a Notice to Contractor by day 30, even by mistake, can cost you tens of thousands. 

Why it matters: Protecting your right to get paid starts with understanding how the Notice of Commencement triggers your obligation to send a Notice to Contractor. When payment is offered in exchange for a lien waiver, knowing what’s enforceable, and what to do if payment never comes, is critical. This article walks through how each process works, who must be served, how to avoid common pitfalls and how to handle lien waivers and Affidavits of Nonpayment. 

Under Georgia law, there’s a series of tensions between two parties with the general contractor (GC) and the owner on one side, and the material suppliers and subcontractors on the other. Each side pulling at their own direction. “It is strictly construed in favor of the owner,” said Beau Hays, attorney at Hays & Potter, LLP (Peachtree Corners, GA), during an NACM webinar, Georgia’s Push-Me/Pull-You Lien Provisions: Pre-Lien Notices and Lien Waivers. “As the lien claimant, you must comply with every requirement, or risk losing your lien rights entirely.” 

Notice of Commencement 

In Georgia, contractors on both public and private construction projects must file a Notice of Commencement within 15 days of starting work. This document helps identify who is working on the project and includes critical details like the project location, owner, GC and a brief description of the job.  

However, the Notice doesn’t indicate how long the project will last, which can create confusion, especially when old Notices remain in the records. Since Georgia lien law is strictly interpreted against contractors and suppliers, it’s safer to act rather than assume. If there’s any uncertainty, always proceed as though a valid Notice exists and respond accordingly. 

“The failure to file a Notice of Commencement shall render the provisions of this section inapplicable,” Hays said. “If a Notice of Commencement isn’t filed, you aren’t required to take the next step. However, once a Notice of Commencement is filed, or even if you’re unsure whether one has been filed, it’s best to go ahead and send the Notice to Owner and Contractor.” 

In addition to filing the Notice, the contractor must respond within 10 days to a written request for a copy of the Notice of Commencement. 

Notice to Owner and Contractor 

A Notice to Owner and Contractor, or Notice to Owner, is required if a valid Notice of Commencement is filed, and you are not in direct contract with the GC. This Notice must be sent within 30 days of first furnishing labor or materials. If no Notice of Commencement was filed or the Contractor doesn’t provide a Notice within 10 days of receipt of your written request or if you contracted directly with the GC, then this Notice isn’t required. But submitting it can still be good practice. 

The Notice to Owner and Contractor must include: 

• Your company’s name, address and phone number. 
• The party who hired you. 
• Project name and address. 
• A brief description of work or materials provided. 
• The contract price or, if unknown, a statement like “TBD” or “unknown.” 

While imperfect or incomplete Notices of Commencement are common, especially regarding ownership details, you should not rely on errors in the Notice as a legal defense. If there is a discrepancy between the filed Notice and the information in the real estate records, it is best to serve your Notice both ways, to preserve your lien rights. 

Interim vs. Final Lien Waivers 

Georgia’s statute regarding lien waivers is mandatory. If the lien waiver being requested by the contractor is not substantially the same as the form text in the statute, it will not operate as a valid waiver.  In exchange for requiring a precise form, however, the statute absolutely voids lien claims if the statutory waiver is valid after 90 days from signature. 

An interim lien waiver is requested in exchange for a payment when work is still in progress and payment is made for only a portion of the work or materials supplied. These waivers include specific date language, such as “through [this date],” which should match the last invoice covered by the payment. If you’ve delivered materials or completed work before the date provided on the interim waiver, this can waive lien rights for unpaid work. 

Final Lien Waivers, on the other hand, do not include the “through date” limitation and cover all work up to the signing date. However, you may still preserve lien rights for any additional work performed after that date, since Georgia law does not allow a waiver of lien rights for work not yet furnished.  

Georgia provides that such lien waivers are valid upon receipt of payment or 90 days after the waiver is signed.  While lien waivers are not filed, a supplier who has not been paid can void the lien waiver by filing an Affidavit of Nonpayment.  

Affidavit of Nonpayment 

In Georgia, if a contractor or supplier hasn’t been paid, an affidavit is required to be sent to the owner before a lien or lawsuit can be filed. This Affidavit of Nonpayment essentially states that the payment has not been received for goods or services rendered. Contractors need to be aware of this to ensure that their lien and payment rights are protected. 

If you file an Affidavit of Nonpayment, and the property owner or GC subsequently pays you in full, the statute requires you to file an affidavit confirming payment, but only if requested. This means the claimant must file an affidavit stating that full payment has been received and that the original Affidavit of Nonpayment is no longer valid. While there’s no explicit penalty in the statute for failing to file an Affidavit of Payment, it’s important to maintain good relationships with customers, suppliers and owners to protect lien rights. 

To file a lien, the critical times are 90 days from the last date of work or delivery or 90 days from the date of a waiver to file an Affidavit of Nonpayment. Don’t wait until the last minute. Delays can result from document rejections due to formatting issues or clerical errors and complex property ownership structures can take time to verify. Filing early ensures you don’t lose lien rights due to a last-minute rejection or missing information. 

Also, the filing of a lien does not satisfy the requirement of filing an Affidavit of Nonpayment and the time for filing a lien is 90 days from the last work even if you have signed a waiver after that date.  To protect your rights, file your Affidavit of Nonpayment and Claim of Lien within 90 days of the earlier date. 

Notice of Contest 

This legal tool allows an owner or GC to shorten your window to enforce a lien from 12 months to just 60 days. The countdown begins the day you receive the Notice, not the filing date, and it must follow strict formatting requirements. If you miss the deadline, the lien becomes void. 

To enforce your lien, you must file a lawsuit or initiate arbitration (if your contract requires it) within those 60 days. In Georgia, the lien suit must be filed against the party that you contracted with, not necessarily the property owner, even if the owner issued the Notice of Contest.  You must also file a Notice of Commencement of Lien Action within 30 days after initiating that legal action. 

The bottom line: Georgia lien law leaves little room for error. Don’t wait until the last minute. Communicate clearly, document thoroughly and when in doubt, act to protect your rights. Arbitration may count as a lien action if filed within the 60-day window following a Notice of Contest, so know your deadlines and act fast. 

For more information regarding Mechanic’s Liens and Bond Claims, visit NACM’s Secured Transaction Services’ (STS) website. You may also contact STS representatives Chris Ring at Chrisr@nacm.org and Jocelyn Vanlandingham at Jocelynv@nacm.org.

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