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Can a subcontractor add a property owner to a preliminary notice/lien claim in GA if they didn't order services?

GeorgiaPreliminary Notice

We have a job in Georgia where the owner of the property demanded they be removed for the preliminary notice we sent because they did not order the service we are providing. I retracted the letter from the property owner after discussing their rights Georgia laws protecting them. However, I feel that we should still have the right to have the owner of the property on the preliminary notice/lien claim regardless of their involvement with the leasee and services requested. Although we are not expecting any payment issues with this particular company, it would still be good to add someone to the notice if that would help preserve our lien rights. Is it a good idea to add the leasee to the notice or resend the preliminary notice to the owner and hope that we do not have to file a lien?

1 reply

Jun 22, 2020

Georgia's mechanics lien statute doesn't provide insight into how subcontractors should handle situations where lessees are having work done. So, generally, it can be a bit of a crapshoot when deciding how to proceed there - and taking the most conservative approach possible, and notifying everyone of your work, is generally a good idea. Still, GA has two different preliminary notices that will need to be taken into account here. You can learn about the differences between those notices here: The Difference Between “Notice to Contractor” and “Preliminary Notice of Lien Rights.” Interestingly, as discussed in that article, a Notice of Contractor is a mailed document, not a filed one. Meaning, the document should be effective once it's received to put the intended parties on notice. As a result, "taking back" the mailed preliminary notice might not have any impact on your lien rights. Though, releasing and editing a Preliminary Notice of Lien Rights could.

Notice to Contractor

If you're referring to the Notice to Contractor document, that preliminary notice is simply an informational document that's mailed. Including the owner on that doc is typically a good idea, but not necessarily required. Under § 44-14-361.5(c)(2) of Georgia's lien statute, the document must contain "The name and address of each person at whose instance the labor, services, or materials are being furnished..." Generally, it's safe for a subcontractor to assume the owner is at least somewhat involved and should be included, but I suppose that won't always be the case. Still - it's best for a sub to err on the side of caution and include all relevant parties, particularly when those parties have been included in the project's Notice of Commencement. So, including both the owner and the lessee would make sense. In terms of recipients, it must be specifically be sent to the owner, according to § 44-14-361.5. An owner might try and argue that the statute means the "owner of the project," thereby the lessee. But, there's really no reason to deviate from what the statute clearly lays out as a requirement - notice being sent to the owner. With that being said, the safest way to proceed would likely to send notice to both the owner and the lessee in charge of the project.

Preliminary Notice of Lien Rights

There's no wiggle room with a Preliminary Notice of Lien Rights. § 44-14-361.3(a)(4) states that the notice must contain "the name of the owner of the real estate..." So, if an owner is upset about being included on the notice, explaining that it's required by statute might provide some relief. Just like with the other notice, including the lessee's information is generally a good idea.

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