O.C.G.A. § 44-14-360 (2019)

Annotations

Editor’s notes. Ga. L. 2021, p. 674, § 7/HB 480, not

codified by the General Assembly, provides: “This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and Sections 2 through 8 of this Act shall apply to labor, services, or materials performed or furnished by registered interior designers on or after such date” This Act was approved by the Governor on May 10, 2021. Law reviews. For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 166 (1992). For survey article on construction law, see 44 Mercer L. Rev. 125 (1992). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For survey article on construction law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 85 (2003). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008).

JUDICIAL DECISIONS Definition of “material.” - Within the meaning of O.C.G.A. § 44-14-360, material is something that goes into and becomes a part of the finished structure, such as lumber, nails, glass, hardware, etc., which is necessary to the completion of the building. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68, 1967 Ga. App. LEXIS 720 (1967). Material improving real estate - Scenery and other stage and science outfit of an opera house are “material” for improving real estate, within O.C.G.A. § 4414-360. Waycross Opera House Co. v. Sossman, 94 Ga. 100, 20 S.E. 252, 1894 Ga. LEXIS 20 (1894). “Material for the improvement” of real estate means something that goes into and becomes a part of the finished structure, such as lumber, nails, glass, hardware, etc., which is necessary to the completion of the building. Skandia Drap-

eries Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279, 277 S.E.2d 282, 1981 Ga. App. LEXIS 1781 (1981). The Georgia courts do not uniformly apply the definitional limitations of the term “materials,” as used in O.C.G.A. § 44-14-360, when that term arises in other contexts. Sims’ Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff’d, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (11th Cir. 1982). Cause of action on statutory payment bond not precluded by lack of right to enforce special lien. - Although the term “materials,” as judicially interpreted, may exclude certain items as nonlienable, the word may very well include the same items for purposes of a separate statute, such as the bond statute; clearly, then, the lack of a right of action to enforce a special lien under Georgia lien law, as statutorily provided or judicially

discerned, does not, of itself, preclude a beneficiary’s right to sue on a statutory payment bond, or, by analogy, on a private payment bond. Sims’ Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff’d, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (11th Cir. 1982). “Subcontractor” means one who, pursuant to a contract with the prime contractor or in a direct chain of contracts leading to the prime contractor, performed services or procured another to perform services in furtherance of the goals of the prime contractor. Tonn & Blank, Inc. v. D.M. Asphalt, Inc., 187 Ga. App. 272, 370 S.E.2d 30, 1988 Ga. App. LEXIS 628 (1988). Owner as “contractor.” - There was no reason why an owner could not also have been a contractor for purposes of a materialman’s lien; because a property owner listed itself as “general contractor” in its notices of commencement, and because a materials supplier was not in privity with the owner, the supplier was required to provide the owner with the O.C.G.A. § 44-14-361(a) notice to contractor; since the supplier failed to give the proper notice, its materialman’s liens were invalid. Roofing Supply of Atlanta, Inc. v. Forrest Homes, Inc., 279 Ga. App. 504, 632 S.E.2d 161, 2006 Ga. App. LEXIS 629 (2006). Machinery which cannot be basis of lien generally. - The general rule is that machinery not totally depreciated by use on the property, incorporated into the improvement, or in connection with which labor was also supplied cannot be the basis of a valid lien. Air Serv. Co. v. Cosmo Invs., Inc., 115 Ga. App. 596, 155 S.E.2d 413, 1967 Ga. App. LEXIS 1179 (1967). No machinist’s lien on realty unless machines become attached as fixtures. - Machinists and manufacturers of machinery have no lien on real estate for machinery furnished, unless the machinery furnished is attached to and becomes incorporated with the realty for which it was furnished. J.S. Schofield & Son v. Stout, Mills & Temple, 59 Ga. 537, 1877 Ga. LEXIS 326 (1877); D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116

Ga. App. 128, 157 S.E.2d 68, 1967 Ga. App. LEXIS 720 (1967). Furnishing machinery for sawmill comes under section. - The furnishing of machinery for a steam sawmill, to improve or enlarge the mill or to keep it efficient, entitles the machinist to a lien under O.C.G.A. § 44-14-360 and not O.C.G.A. § 44-14-515. Filer & Stowell Co. v. Empire Lumber Co., 91 Ga. 657, 18 S.E. 359, 1893 Ga. LEXIS 300 (1893). All charges made by materialman for use of equipment are nonlienable items. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412, 170 S.E.2d 721, 1969 Ga. App. LEXIS 796 (1969). Equipment or machinery rented or leased to a contractor to perform work are nonlienable. Mableton Erectors, Inc. v. Dunn Properties of Ga., Inc., 135 Ga. App. 504, 218 S.E.2d 175, 1975 Ga. App. LEXIS 1718 (1975). Lessor of machinery not attached to realty not entitled to lien. - A mere lessor of machinery to a contractor does not come within the class in favor of whom the lien is granted, nor does the machinery itself, not being something in the order of a steam mill or other mechanical device intended to be attached to and used on the realty. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68, 1967 Ga. App. LEXIS 720 (1967). Lessor of air compressor and drill has no lien on realty imposed. - O.C.G.A. § 44-14-360 does not give a lessor of machinery consisting of an air compressor and drill a lien on real estate for the rental value of the machinery leased to a contractor who uses it in improving the real estate of the owner against whom the lien is sought. Air Serv. Co. v. Cosmo Invs., Inc., 115 Ga. App. 596, 155 S.E.2d 413, 1967 Ga. App. LEXIS 1179 (1967). Rental on a company’s scaffolding is not lienable. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68, 1967 Ga. App. LEXIS 720 (1967). Materialmen entitled to lien under section generally. - O.C.G.A. § 44-14360 provides a lien only to materialmen who may have supplied the materials di-

rectly to the owner of the realty, or to a contractor or a subcontractor engaged in making the improvement. Georgia-Pacific Corp. v. Dan Austin Properties, Inc., 126 Ga. App. 191, 190 S.E.2d 131, 1972 Ga. App. LEXIS 1096, aff’d, 229 Ga. 803, 194 S.E.2d 472, 1972 Ga. LEXIS 778 (1972). Seller of building equipment and tools not entitled to lien. - One who sells shovels, shovel handles, gloves, tape, rope, files, matches, pulley and hook, hammers, brushes, sand screen, lamp chimney, and saw files to a contractor who has a contract for improving realty is not entitled to a lien for those items. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68, 1967 Ga. App. LEXIS 720 (1967). No lien for one who furnishes equipment and tools, but performs no labor or services. - The owner of horses, equipment, or machinery, who furnishes them to another to aid in construction or improvements, or in any work for which a lien is given, but who performs no manual labor or other services in connection therewith, is not entitled to a lien. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68, 1967 Ga. App. LEXIS 720 (1967). No lien for supplier of supplier. - The supplier of a supplier of materials to be used in the improvement of realty is not entitled to a claim of lien therefor under O.C.G.A. § 44-14-360. Georgia-Pacific Corp. v. Dan Austin Properties, Inc., 126 Ga. App. 191, 190 S.E.2d 131, 1972 Ga. App. LEXIS 1096, aff’d, 229 Ga. 803, 194 S.E.2d 472, 1972 Ga. LEXIS 778 (1972). Rental value of machinery covered by surety bond. - Under O.C.G.A. § 44-

14-360(3), bond obligees’ property would be subject to a special lien for the rental value of machinery leased to subcontractor by materialmen. Sims’ Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff’d, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (11th Cir. 1982) (decided prior to 1991 amendment). O.C.G.A. § 44-14-360 does not operate in favor of a contractor paving a sidewalk in a street adjacent to a lot. Seeman v. Schultze, 100 Ga. 603, 28 S.E. 378, 1897 Ga. LEXIS 112 (1897). Supplier of equipment was supplier of material. - Under O.C.G.A. §§ 44-14360(3) and 44-14-361.1(a), a supplier of equipment for a construction project was a supplier of material and thus had to furnish its equipment for the improvement of the project in order for its lien to arise. Cent. Atlanta Tractor Sales, Inc. v. Athena Dev., LLC, 289 Ga. App. 355, 657 S.E.2d 290, 2008 Ga. App. LEXIS 87 (2008). Mechanic’s lien foreclosure action improperly dismissed. - In a mechanic’s lien foreclosure action brought by a construction company against a property owner, the trial court erred by dismissing the action as untimely since the lien, although stating that the debt became due on a date more than three months from the date the lien was filed, also stated that the construction company provided services, labor, and/or materials to the property owner within three months of the filing of the complaint. D. C. Ecker Constr., Inc. v. Ponce Inv., LLC, 294 Ga. App. 833, 670 S.E.2d 526, 2008 Ga. App. LEXIS 1322 (2008), cert. denied, No. S09C0486, 2009 Ga. LEXIS 184 (Ga. Feb. 23, 2009).

RESEARCH REFERENCES Am. Jur. Pleading and Practice Forms. 17B Am. Jur. Pleading and Practice Forms, Mechanics’ Liens, § 2. ALR. Garnishment of funds payable under

building and construction contract, 16 A.L.R.5th 548. Architect’s services as within mechanics’ lien statute, 31 A.L.R.5th 664.