Preliminary notices are the building blocks to the mechanics lien process in Georgia. Subcontractors and suppliers (and sometimes general contractors and design professionals) must provide notice to protect their ability to file a lien. General contractors, property owners, and lenders rely on notices to paint a picture of who is working on their projects. Here, we explain how to use Georgia’s preliminary notice requirements to speed up payments — and protect your rights.
What is a Georgia preliminary notice?
In the state of Georgia, there are two types of notice that can be considered “preliminary notices.” This includes both a Notice to Contractor governed by O.C.G.A. §44-14-361.5 and a Preliminary Notice of Lien Rights governed by O.C.G.A. §44-14-361.3.
Each of these notice has its own deadlines and requirements. This article will break down the in’s and out’s of both notices to ensure your mechanics lien rights.
Why send a Georgia preliminary notice?
In Georgia, certain parties are required to send a preliminary notice in order to maintain a valid lien claim. But that’s not the only reason to send a preliminary notice. It is best practice for all parties on construction projects to send preliminary notice, even if it is not specifically required. Preliminary notices also support good working relationships, as they make sure that owners, lenders, and general contractors know who is working for them (this is especially beneficial on large projects).
Who needs to send a Georgia preliminary notice? And who is it sent to?
Notice to Contractor
A Georgia preliminary notice is rarely required on construction projects, but rather only under certain circumstances. Anyone who didn’t contract directly with the prime contractor may be required to send a Notice to Contractor to both the owner (or owner’s agent) and the prime contractor. That’s only if a Notice of Commencement has been filed by the property owner.
If a Notice of Commencement is not filed, lien claimants are permitted to file a Preliminary Notice of Lien which prevents lien rights from being knocked out by a prime contractor’s affidavit or lien waiver attesting to the payment of all subcontractors.
If you’re wondering how one would know if a Notice of Commencement has been filed, you’re not alone. Locating the notice in Georgia requires a proactive approach to locating the information. Here is a helpful article to get you started: How Do You Find a Notice of Commencement in Georgia?
Preliminary Notice of Lien Rights
This type of preliminary notice can be filed by any potential claimant who wishes to prevent their lien rights from being knocked out by a prime contractor’s affidavit attesting to the payment of all subs and suppliers on the project. Unlike a traditional preliminary notice, this must be filed in the county clerk of the superior court where the property is located but also sent to the owner and general contractor.
When does a Georgia preliminary notice need to be sent?
Notice to Contractor
The preliminary notice should be sent at the later of these dates: within 30 days of first furnishing labor or materials on a project, or 30 days from the filing of the Notice of Commencement. If a Notice to Contractor is required, failure to send will kill your lien rights.
If no Notice of Commencement is filed, there are no consequences for failing to send the preliminary notice. However, if the contractor has filed an affidavit of payment of all subs and suppliers; lien rights may be extinguished if they hadn’t filed a preliminary notice.
Failure to provide timely preliminary notice, if a Notice of Commencement was not filed, has no consequence to a party’s lien rights provided the contractor has not attested in an affidavit to the payment of all subcontractors and suppliers. If the contractor has so attested, lien rights may be extinguished if the preliminary notice has not been filed. The best practice is to send a preliminary notice as soon as you commence work.
Preliminary Notice of Lien Rights
The deadline to file a Georgia Preliminary Notice of Lien Rights is a bit vague. The statute itself states that the notice must be filed “within 30 days after the date a party delivered any materials or provided any labor or services for which a lien can be claimed.” This could mean 30 days after the first delivery or last delivery. However, it’s recommended that the notice be filed as early as possible. Once filed, a copy of the notice must also be sent to the owner, or contractor, within 7 days of filing.
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What needs to be included in the Georgia preliminary notice?
Notice to Contractor
A Georgia Notice to Contractor doesn’t have any specific formatting requirements. However, in order to be valid, it must contain specific information. A Notice to Contractor must include all of the following:
- Claimant’s name, address, and telephone number
- Hiring party’s name and address
- Name of the project & the project location
- The information provided in this section must match up to the information found in the Notice of Commencement.
- A description of the labor, services, or materials provided
- Contract price or anticipated value of the labor, services, or materials provided
- Keep in mind that if the actual amount ends up being greater than what was provided in this section, the larger amount is still lienable.
Preliminary Notice of Lien Rights
A Georgia Preliminary Notice of Lien Rights needs to include the following information in order to be valid and recordable. This includes the following information:
- Claimant’s name, address, and telephone number
- Hiring party’s name and address
- Name of the owner & property description
- The property description must be sufficient to identify the real estate. This doesn’t mean a full legal property description, but the more information provided, the better.
- A description of labor, services, or materials provided
How do I send a preliminary notice in Georgia?
Notice to Contractor
Preliminary notices in Georgia must be sent by registered or certified mail, or statutory overnight delivery. These notices should be sent to the addresses provided in the Notice of Commencement. In Georgia, the courts have frequently held that a notice is considered delivered once the notice was mailed through the proper means.
Preliminary Notice of Lien Rights
A notice of lien rights doesn’t operate in the same manner as a typical preliminary notice. This notice actually must be filed with the clerk of the superior court of the county where the property is located. This can be done by either mailing in your notice or walking into the county recorder’s office yourself.
