Editor's notes.

- The pre-1984 cases noted below were decided under former Code section 44-14-362. See, also, the annotations under that Code section for decisions applicable to present Code section 44-14-361.1.

Purpose.

- The purpose of the recording statutes is to protect both the lienholder and innocent persons acting in good faith but without means of discovering the lien of another. An attorney is given the privilege of protecting a lien by recording the attorney's claim thereto, and the attorney's failure to utilize such privilege brings upon the attorney the same disaster that befalls other lienholders who neglect to record the lien as authorized by law. Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981).

The purpose of the former statutory provision (now O.C.G.A. § 44-14-361.1(c)), which required that notice of a subcontractor's suit against the contractor to recover the claim on which the lien was based need only be filed within 12 months of the time the claim for materials became due, was primarily to provide potential purchasers of the property with constructive notice to enable them to determine whether or not the claim of lien was still extant. Amafra Enters., Inc. v. All-Steel Bldgs., Inc., 169 Ga. App. 388, 313 S.E.2d 110 (1984).

The intent of O.C.G.A. § 44-14-361.1 as to timely filing of liens is to establish a time certain beyond which liens cannot be filed, for the protection of the contracting parties and innocent third parties. Womack Indus., Inc. v. B & A Equip. Co., 199 Ga. App. 660, 405 S.E.2d 880, cert. denied, 199 Ga. App. 907, 405 S.E.2d 880 (1991).

O.C.G.A. § 44-14-361.1 is to be strictly construed. Ballard v. Grubbs, 9 Bankr. 499 (M.D. Ga. 1981).

O.C.G.A. § 44-14-361.1 is in derogation of common law and is to be strictly construed against the materialman, and strict compliance is required. Womack Indus., Inc. v. B & A Equip. Co., 199 Ga. App. 660, 405 S.E.2d 880, cert. denied, 199 Ga. App. 907, 405 S.E.2d 880 (1991).

The creation of liens under O.C.G.A. § 44-14-361.1 is in derogation of the common law, and strict compliance with the requirements of the statute is required. Consolidated Sys. v. AMISUB, Inc., 261 Ga. 590, 408 S.E.2d 109 (1991).

A materialman's lien effectively permits the transfer of liability from the person who actually contracted with the materialman for materials to be used on improving real estate to the owner of the improved property, even though that property owner usually will have no relationship with the materialman, contractual or otherwise. Consequently, the court has long recognized that statutes involving materialman's liens must be strictly construed in favor of the property owner and against the materialman. Palmer v. Duncan Whsle., Inc., 262 Ga. 28, 413 S.E.2d 437 (1992).

Failure to prove lien amount.

- Trial court erred by granting summary judgment to a subcontractor because the subcontractor failed to prove the lien amount, if any, the subcontractor was entitled to and the subcontractor was not entitled to a lien for the attorney fees and interest allegedly owed since there was no agreement for such amounts. Hill v. VNS Corp., 329 Ga. App. 274, 764 S.E.2d 876 (2014).

No damages available.

- O.C.G.A. § 44-14-361.1 does not provide for an action for damages for its violation, as it explicitly states that failure to comply with its provisions will result in the unenforceability of the lien. Hicks v. McLain's Bldg., Materials, Inc., 209 Ga. App. 191, 433 S.E.2d 114 (1993).

Prejudgment interest.

- Owners were not insulated against the payment of prejudgment interest since an award of such interest is distinct and separate from and not to be included in the calculation of the "aggregate amount of liens" within the meaning of O.C.G.A. § 44-14-361.1(e). Gaster Lumber Co. v. Browning, 219 Ga. App. 435, 465 S.E.2d 524 (1995), aff'd, 267 Ga. 72, 475 S.E.2d 576 (1996).

"Properly appropriate" payment construed.

- Where liens were filed prior to payment of the full contract price to the general contractor, payment that is thereafter made to any other materialman as a potential lien claimant is not payment which is "properly appropriate" and may not be set up by the owner in defense of the subsequent foreclosure of those previously filed liens. Electrical Distrib., Inc. v. Turner Constr. Co., 196 Ga. App. 359, 395 S.E.2d 879 (1990).

One seeking to foreclose a contractor's lien for labor and materials must show a substantial compliance with the contract and, if the completion of the contract was prevented by the defendant, this is equivalent to a completion of the contract as a remedial element. Summit-Top Dev., Inc. v. Williamson Constr., Inc., 203 Ga. App. 460, 416 S.E.2d 889 (1992).

Failure to follow statutory procedure renders lien unenforceable.

- Where a party fails to follow the mandatory procedure established in O.C.G.A. § 44-14-361.1, and where a suit against the contractor is mandatory, the party's lien is unenforceable and the trial court would be correct in granting summary judgment to the opposing party. D & T Glass, Inc. v. Barrow Enters., Inc., 172 Ga. App. 797, 325 S.E.2d 170 (1984).

Failure to comply with the statutory mandate of filing notice of a lien under oath renders the lien unenforceable. Allied Elec. Contractors v. Kern & Co., 184 Ga. App. 747, 362 S.E.2d 452 (1987), cert. denied, 184 Ga. App. 909, 362 S.E.2d 452 (1988).

Failure to file lien notice.

- Homeowner was entitled to summary judgment on the contractor's claim for foreclosure of a lien because the contractor failed to file the notice required by O.C.G.A. § 44-14-361.1(a)(3). Wagner v. Robinson, 329 Ga. App. 169, 764 S.E.2d 189 (2014).

Effect of discharge of lien by bond.

- When contractor and insurance company posted a bond to discharge supplier's liens, the bond served as a replacement for the lien and supplier's later execution of waiver and release of lien did not affect its contract claims against the bond. Benning Constr. Co. v. All-Phase Elec. Supply Co., 206 Ga. App. 279, 424 S.E.2d 830 (1992).

A lien is not a pleading for purposes of O.C.G.A. § 51-5-8 and statements made within a surveyor's lien are not afforded absolute privilege until the lien becomes attached to a lawsuit and verified notice of the suit is filed under O.C.G.A. § 44-14-361.1, at which point, the lien becomes an act of legal, or judicial process, and achieves the formality, solemnity, and status of a sworn statement. Simmons v. Futral, 262 Ga. App. 838, 586 S.E.2d 732 (2003).

Pre-lien payments.

- An owner is not entitled to credit under O.C.G.A. § 44-14-361.1(a)(4) where pre-lien payments to the contractor are disbursed post-lien by the contractor in payment of inferior-ranked, inchoate claims of materialmen and laborers. Browning v. Gaster Lumber Co., 267 Ga. 72, 475 S.E.2d 576 (1996).

What an owner must show to defeat a materialmen's lien.

- An owner must not only show that full payment was actually made to the contractor, the owner is also required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor's statutory affidavit concerning such indebtedness had been obtained. Freeman v. Fulton Concrete Co., 204 Ga. App. 465, 419 S.E.2d 536 (1992).

The defense provided in O.C.G.A. § 44-14-361.1(e) requires that the owner show the sums paid to the contractor were properly appropriated, i.e., paid before the filing of the lien, to materialmen and laborers or that the contractor's affidavit concerning such indebtedness has been obtained. Gaster Lumber Co. v. Browning, 219 Ga. App. 435, 465 S.E.2d 524 (1995), aff'd, 267 Ga. 72, 475 S.E.2d 576 (1996).

Owners failed to produce any lien waiver or other documentary proof that paving subcontractor paid paving company for the labor and materials it furnished, and therefore failed to rebut the paving company's prima facie showing that it was entitled to summary judgment on its materialman's lien claim. Little Tallapoosa Dev., Inc. v. Baldwin Paving Co., 251 Ga. App. 238, 553 S.E.2d 860 (2001).

An abandonment of the work before compliance with the contract upon a mere apprehension that payment will not be received is unauthorized and defeats the contractor's claim of lien. Summit-Top Dev., Inc. v. Williamson Constr., Inc., 203 Ga. App. 460, 416 S.E.2d 889 (1992).

Contractor unable to complete job.

- Where the contractor was prevented from completing the job due to the developer's inability to pay, the contractor's cessation of work was not an abandonment of the contract. Summit-Top Dev., Inc. v. Williamson Constr., Inc., 203 Ga. App. 460, 416 S.E.2d 889 (1992).

No enforceable lien absent contract between owner and person furnished materials.

- In the absence of a showing of a contractual relationship between the property owner and the person to whom the materials were furnished, no enforceable lien is created against the owner's property. Ben Hill Ready Mix Concrete Co. v. Prather, 160 Ga. App. 149, 286 S.E.2d 481 (1981); Frank Woods Constr. Co. v. Randi, 177 Ga. App. 438, 339 S.E.2d 406 (1986).

No entitlement to claim in full amount of creditor's materialman's liens.

- Creditor would not necessarily be entitled to a claim in the full amount of the creditor's materialman's liens under O.C.G.A. § 44-14-361 but rather, would only be entitled to recover the damages the creditor suffered pursuant to O.C.G.A. § 51-1-6 due to the debtor's crime of false swearing, which would be the value of liens lost, which in turn depended on the value of the properties to which the liens attached and the existence of any superior liens on those properties. In the absence of an established underlying claim, summary judgment in the creditor's favor on the creditor's nondischargeability claims was not warranted. Thomas Concrete of Ga., Inc. v. Osbourne (In re Osbourne), Bankr. (Bankr. N.D. Ga. Aug. 24, 2017).

Invoices for materials create presumption of receipt by contractor.

- Invoices showing that materials were shipped by the supplier to the contractor for use at the job site created a rebuttable presumption that the materials were received and used by the contractor for the benefit of the property owner. Williamscraft Dev., Inc. v. Vulcan Materials Co., 196 Ga. App. 703, 397 S.E.2d 122 (1990).

Materialman relieved from obtaining judgment before enforcing lien where contractor adjudicated bankrupt.

- A building contractor who filed a bankruptcy petition was "adjudicated a bankrupt" within the meaning of O.C.G.A. § 44-14-361.1 though the contractor was not discharged in bankruptcy; therefore, a materialman was relieved from obtaining a judgment against the contractor before enforcing a materialman's lien against the improved property. Reid v. Harbin Lumber Co., 172 Ga. App. 615, 323 S.E.2d 845 (1984).

Where part of a construction contract is sublet to a subcontractor by a prime contractor, the owner may not be subjected to a lien for any claim or amount which the main contractor could not assert against the owner. Troup Enters. v. Mitchell, Carrington & Rayfield, Inc., 199 Ga. App. 173, 404 S.E.2d 337 (1991).

Subcontractor not eligible for lien.

- Because a subcontractor did not actually comply with O.C.G.A. § 43-14-8(f) as the evidence indicated that a Georgia-licensed electrician that the subcontractor affiliated itself with through an alleged joint venture only presented electrical contracting licenses when permits for the work were applied for and took no action to inspect others' electrical work or to verify that the work complied with the applicable codes, the subcontractor could not enforce the subcontract with the contractor, could not recover in quantum meruit under O.C.G.A. § 9-2-7 as the express contract violated public policy, and could not file a subcontractor's lien under O.C.G.A. §§ 44-14-361.1 and44-14-367. JR Construction/Electric, LLC v. Ordner Constr. Co., 294 Ga. App. 453, 669 S.E.2d 224 (2008).

Completion of contract as question of fact.

- When the record does not disclose as a matter of law whether the work performed by a contractor should be considered as completion of the original contract, the matter rests with the factfinders. Troup Enters. v. Mitchell, Carrington & Rayfield, Inc., 199 Ga. App. 173, 404 S.E.2d 337 (1991).

Evidence demanded a conclusion that a subcontractor substantially completed its contract work on the date when the work was approved as substantially complete, or on the date when the subcontractor gave its warranty, or in all events no later than the date when the subcontractor said that its employees were last on the job. Womack Indus., Inc. v. B & A Equip. Co., 199 Ga. App. 660, 405 S.E.2d 880, cert. denied, 199 Ga. App. 907, 405 S.E.2d 880 (1991).

Materialman's lien statute not applicable to attorney's lien.

- O.C.G.A. § 44-14-361.1 did not apply to the enforcement of an attorney's lien. Hester v. Chalker, 222 Ga. App. 783, 476 S.E.2d 79 (1996).

Applicability to supplier of equipment.

- Under O.C.G.A. §§ 44-14-360(3) and44-14-361.1(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).

Cited in AAA Plastering Co. v. TPM Constructors, Inc., 247 Ga. 601, 277 S.E.2d 910 (1981); Ansley Park Plumbing & Heating Co. v. Mikart, Inc., 9 Bankr. 144 (Bankr. N.D. Ga. 1981); Linco Constr. Co. v. Tri-City Concrete, Inc., 161 Ga. App. 174, 288 S.E.2d 125 (1982); Dodson v. Earley, 161 Ga. App. 666, 290 S.E.2d 105 (1982); H.R.H. Prince Ltc. Faisal M. Saud v. Batson-Cook Co., 161 Ga. App. 219, 291 S.E.2d 249 (1982); Lincoln Log Homes Mktg., Inc. v. Holbrook, 163 Ga. App. 592, 295 S.E.2d 567 (1982); Cheek v. Lowe's of Ga., Inc., 17 Bankr. 875 (Bankr. M.D. Ga. 1982); Thompson v. Crouch Contracting Co., 164 Ga. App. 532, 297 S.E.2d 524 (1982); Coley Elec. Supply, Inc. v. Colonial Eggs of Alma, Inc., 165 Ga. App. 108, 299 S.E.2d 165 (1983); Dunoco Dev. Corp. v. Ed Taylor Constr. Co., 178 Ga. App. 738, 344 S.E.2d 531 (1986); Spicewood, Inc. v. Ferro Pipeline Co., 181 Ga. App. 277, 351 S.E.2d 711 (1986); Olympic Constr., Inc. v. Village Ctrs., Inc., 80 Bankr. 574 (Bankr. N.D. Ga. 1987); Stonepecker, Inc. v. Shepherd Constr. Co., 188 Ga. App. 513, 373 S.E.2d 295 (1988); Hardee v. Spivey, 193 Ga. App. 234, 387 S.E.2d 430 (1989); Dallas Bldg. Material, Inc. v. Smith, 193 Ga. App. 512, 388 S.E.2d 359 (1989); Roberts v. Porter, Davis, Saunders & Churchill, 193 Ga. App. 898, 389 S.E.2d 361 (1989); CC & B Indus., Inc. v. Stroud, 198 Ga. App. 658, 402 S.E.2d 527 (1991); Abacus, Inc. v. Hebron Baptist Church, Inc., 201 Ga. App. 376, 411 S.E.2d 113 (1991); Georgia N. Contracting, Inc. v. Haney & Haney Constr. & Mgt. Corp., 204 Ga. App. 366, 419 S.E.2d 348 (1992); Resurgens Plaza S. Assocs. v. Consolidated Elec. Supply, Inc., 215 Ga. App. 818, 452 S.E.2d 784 (1994); FDIC v. Gray, 225 Ga. App. 415, 484 S.E.2d 67 (1997); GF/Legacy Dallas, Inc. v. Juneau Constr. Co., LLC, 282 Ga. App. 14, 637 S.E.2d 511 (2006); Consumer Portfolio Servs. v. Rouse, 282 Ga. App. 314, 638 S.E.2d 442 (2006); L. Lowe & Co., Inc. v. Sunset Strip Props., LLC, 283 Ga. App. 357, 641 S.E.2d 797 (2007); LandSouth Constr., LLC v. Lake Shadow Ltd., LLC., 303 Ga. App. 413, 693 S.E.2d 608 (2010); Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga. App. 832, 730 S.E.2d 556 (2012); Stock Building Supply, Inc. v. Platte River Insurance Company, 336 Ga. App. 113, 783 S.E.2d 708 (2016).

Compliance with section unnecessary as to issue between attorney and client.

- O.C.G.A. § 44-14-361.1 is applicable to attorney's liens only when the struggle is between the attorney and an innocent third party; as to an issue between the attorney and client only, it is not necessary to show compliance with that section in order to recover. Griner v. Foskey, 158 Ga. App. 769, 282 S.E.2d 150 (1981).

Affidavit.

- Trial court did not err by granting partial summary judgment to a buyer on its claim that the seller's mechanic's lien was invalid for failure to record an affidavit for the commencement of an action so as to establish the lien as required by O.C.G.A. § 44-14-361.1(a)(3). Krut v. Whitecap Hous. Group, LLC, 268 Ga. App. 436, 602 S.E.2d 201 (2004).

Description of property.

- Where the description of real property in a materialman's lien inaccurately described the property and did not contain an adequate "key" to remedy the deficiency, the lien was unenforceable. Mull v. Mickey's Lumber & Supply Co., 218 Ga. App. 343, 461 S.E.2d 270 (1995).

Home purchasers and a mortgagee were entitled to summary judgment on a contractor's materialmen's liens because the property descriptions in each of the liens did not accurately describe the purchasers' property as they differed from the description in the warranty and security deeds and, thus, the liens did not comply O.C.G.A. § 44-14-361.1(a). Bollers v. Noir Enters., 297 Ga. App. 435, 677 S.E.2d 338 (2009).

Compliance with copy requirement.

- Trial court did not err in granting a subcontractor summary judgment in the subcontractor's action against a property owner and surety to recover under a lien discharge bond for monies allegedly owed for materials, services, and labor the subcontractor supplied to a construction project because the subcontractor complied with the copy requirement of O.C.G.A. § 44-14-361.1(a)(2); the subcontractor's claim of lien was not ineffective by reason of the slight variance to be found in the copy supplied to the owner because the copy of the claim of lien the subcontractor sent to the owner clearly served the purpose of the claim of lien provisions found in § 44-14-361.1(a)(2) of ensuring that the owner timely received notice of its lien, even though one word of the owner's name was omitted. Madison Retail Suwanee, LLC v. Orion Enters. Sales & Serv., 309 Ga. App. 712, 711 S.E.2d 71 (2011).

Effect of unperfecting on claim for money damages.

- Filing of imperfect notice rendered a materialman's lien unenforceable, but was not a defense to the materialman's complaint for money damages for the value of materials. Consolidated Sys. v. AMISUB, Inc., 261 Ga. 590, 408 S.E.2d 109 (1991).

Liens in excess of remaining contract price were invalid.

- Subcontractor's liens on property were invalid as excessive under O.C.G.A. § 44-14-361.1(e) because the amount of remaining unpaid principal on the contract was $326,661, and the subcontractor filed $727,919 in liens against one parcel (and $1,819,799 against all parcels in the project). Seaboard Constr. Co. v. Kent Realty Brunswick, LLC, 331 Ga. App. 742, 771 S.E.2d 429 (2015).

Identity of real person whose interest in premises subject to lien.

- Where a lien claim was filed solely against the owner's reversionary interest and not against the leasehold interest in the premises, the lien document failed to reveal affirmatively the identity of the real person whose interest in the premises was being subjected to the lien, the lien claim was not effective. Meco of Atlanta, Inc. v. Super Valu Stores, Inc., 215 Ga. App. 146, 449 S.E.2d 687 (1994).

The general contractor was not an indispensable party in an action by an insolvent subcontractor's supplier against the contractor's surety where the supplier satisfied the statutory requirements to prevail on the underlying lien. Hendricks v. Blake & Pendleton, Inc., 221 Ga. App. 651, 472 S.E.2d 482 (1996).

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).

Subcontractor satisfied requirements and did not refer to owners as contractors.

- Dismissal of the petitions was affirmed because the subcontractor's claims of liens included statements that the liens were against specific properties for materials furnished to the respective property owner or owners, and at no point in the claims of liens did the subcontractor describe the owners as contractors. Robertson v. Ridge Envtl., LLC, 319 Ga. App. 570, 737 S.E.2d 578 (2013).

Failure to meet filing requirement.

- Georgia law requires that a contractor suing an owner directly file a notice of the suit brought against the owner with the clerk of the superior court in which the subject property is located. Where this is not done, the requirements of O.C.G.A. § 44-14-361.1 have not been met; the lien has not been "made good"; and there can be no "relation back" concerning either the lien or any judgment arising out of said lien. Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 26 Bankr. 394 (Bankr. N.D. Ga. 1983).

Failure of materialman to comply with the notice provisions of O.C.G.A. § 44-14-361.1(a)(3) extinguished the materialman's right to a lien against the improved real estate. The contractor's subsequent bankruptcy filing could not breathe new life into the extinguished right to a lien so as to give the materialman another bite at the apple it had missed on its first bob. Palmer v. Duncan Whsle., Inc., 262 Ga. 28, 413 S.E.2d 437 (1992).

Materialmen's filing of notice against the contractor did not satisfy the requirement for filing a notice of subsequent action against property owners. Northside Wood Flooring, Inc. v. Borst, 232 Ga. App. 569, 502 S.E.2d 508 (1998).

Before a materialman's lien can be allowed, the lien claimant must show compliance with all conditions of O.C.G.A. § 44-14-361.1, and filing the notice of commencement of the action is a prerequisite to the enforceability of the lien; at the time the lien holder fails to file the notice, the lien becomes unenforceable. Gwinnett-Club Assocs., L.P. v. Southern Elec. Supply Co., 242 Ga. App. 507, 529 S.E.2d 636 (2000).

When a Chapter 7 debtor raised two counterclaims to a nondischargeability complaint that both involved state law issues (breach of contract and whether the creditor failed to timely file a notice of action under O.C.G.A. § 44-14-361.1(a)(3) and (4)), a bankruptcy court determined sua sponte that discretionary abstention under 28 U.S.C. § 1334(c)(1) was appropriate. While dischargeability was a bankruptcy matter, the state law liability issues were not so closely related that the dischargeability issue could not be severed, and it was in the best interest of the parties that the debtor's liability under state law be determined in a pending state court lien action. K.A.P., Inc. v. Hardigan (In re Hardigan), Bankr. (Bankr. S.D. Ga. Jan. 18, 2013).

Constructive trust not imposed.

- Georgia law does not impose a constructive trust in favor of a subcontractor on funds paid by an owner to a contractor when the subcontractor has not filed a lien, even when the owner has paid the contractor in full during the time the subcontractor could have filed a lien. Wachovia Bank v. American Bldg. Consultants, Inc., 138 Bankr. 1015 (Bankr. N.D. Ga. 1992).

Reliance on verbal promises to pay.

- A materialman is not excused from filing a claim of lien in reliance on the contractor's verbal promises to pay. Wachovia Bank v. American Bldg. Consultants, Inc., 138 Bankr. 1015 (Bankr. N.D. Ga. 1992).

The three-month deadline for filing a mechanic's lien cannot be excused, relaxed, or extended by the actions of either the debtor or the creditor. Ballard v. Grubbs, 9 Bankr. 499 (M.D. Ga. 1981).

Strict construction of three-month time limit for filing lien.

- The method of time computation in O.C.G.A. § 1-3-1(d)(3), which would allow plaintiff to file its materialman's lien after the three-month period expired because the period expired on a weekend, did not apply to extend the filing requirement of O.C.G.A. § 44-14-361.1(a)(2). United States Filter Distrib. Group, Inc. v. Barnett, 241 Ga. App. 759, 526 S.E.2d 912 (1999), aff'd, 273 Ga. 254, 538 S.E.2d 739 (2000).

Subcontractor was not required to file notice of lien under O.C.G.A. § 44-14-361.1(a)(3) in order to recover on a bond obtained by a general contractor which discharges a lien against property. Burgess v. Travelers Indem. Co., 185 Ga. App. 82, 363 S.E.2d 308 (1987), cert. denied, 185 Ga. App. 909, 363 S.E.2d 308 (1988).

Filing of notice prerequisite to enforceability of lien.

- The notice required to be filed is the notice of the commencement of action against the contractor and is a prerequisite to the enforceability of the lien. Statham Mach. & Equip. Co. v. Howard Constr. Co., 160 Ga. App. 466, 287 S.E.2d 249 (1981).

A supplier's failure to file, in county wherein property is located, notice of commencement of action against contractor in another county renders the supplier's claim of lien unenforceable. Bettis v. McClure, 160 Ga. App. 412, 287 S.E.2d 291 (1981).

Where actions to enforce a materialman's lien against the property owner are commenced beyond the statutory 12-month period by virtue of the bankruptcy exception, failure properly to file a notice of the claim or action with the superior court clerk of the county wherein the subject lien was filed extinguishes said claim of lien and renders it unenforceable. Newton Lumber & Supply, Inc. v. Crumbley, 161 Ga. App. 741, 290 S.E.2d 114 (1982).

Filing notice is a prerequisite to enforcement of a lien. Frank Woods Constr. Co. v. Randi, 177 Ga. App. 438, 339 S.E.2d 406 (1986).

Filing notice of commencement of the action is a prerequisite to enforceability of the lien. Eurostyle, Inc. v. Jones, 197 Ga. App. 188, 397 S.E.2d 620 (1990).

Because a notice under O.C.G.A. § 44-14-361.1(a)(3) was not filed within 14 days of a lien claimant's suit being initiated, the lien was unenforceable, and the trial court did not err in granting a developer's motion for partial summary judgment against the lien claimant; while the appeals court sympathized with the lien claimant's argument that the claimant received a file-stamped copy and as a result believed no fee was due, ultimately it was the responsibility of plaintiff and plaintiff's counsel to see that the appropriate fees were paid in a timely manner. Kendall Supply, Inc. v. Pearson Cmtys., Inc., 285 Ga. App. 863, 648 S.E.2d 158 (2007).

When a subcontractor filed a proof of claim in a general contractor's bankruptcy action, but did not file a notice of commencement of the action as required by O.C.G.A. § 44-14-361.1(a)(3), the subcontractor's lien claim was extinguished and could not be revived in an action by the subcontractor against the property owner. Action Concrete v. Portrait Homes - Little Suwanee Point, LLC, 285 Ga. App. 650, 647 S.E.2d 353 (2007).

Materialmen's lien creditor was required to file a notice of commencement within 14 days of filing the creditor's proof of claim under O.C.G.A. § 44-14-361.1(a)(3), and the creditor's failure to do so rendered the creditor's claim unperfected under 11 U.S.C. § 546(b)(2), and unsecured, so that the creditor's lien could be avoided under 11 U.S.C. § 545(2). In re R & B Constr., Bankr. (Bankr. N.D. Ga. Aug. 17, 2010).

Lien rights lost where notice not filed.

- Because filing notice is a prerequisite to enforcing a lien, a party's right to enforce a lien based on that action is forever lost as of the fifteenth day after it commences its action without filing notice. The filing of a subsequent action does not revive the party's lien rights. Metromont Materials Corp. v. Cargill, Inc., 221 Ga. App. 853, 473 S.E.2d 498 (1996); Weber Air Conditioning, Inc. v. Triple-R Pooler, Inc., 245 Ga. App. 590, 538 S.E.2d 499 (2000).

Notice requirement applies whether claim brought against contractor or owner.

- The notice requirement of O.C.G.A. § 44-14-361.1(a)(3) applies whether the recovery of the amount of the materialman's claim be properly brought against the contractor or the owner, whichever one is contractually responsible for the debt. Beall v. F.H.H. Constr., Inc., 193 Ga. App. 544, 388 S.E.2d 342 (1989).

All recovery suits, including those against a property owner, are subject to the requirements set forth in O.C.G.A. § 44-14-361.1(a)(3) because application of its provisions is dependent upon whether the defendant is the one primarily or contractually liable for the alleged debt, not upon whether the defendant is a contractor. Ragsdale v. Chiu (In re Harbor Club), 185 Bankr. 959 (Bankr. N.D. Ga. 1995).

Facsimile not effective as notice.

- Trial court properly granted summary judgment to property owner after the subcontractor sued the property owner so that the subcontractor could perfect its materialman's lien against the property owner's property, as the subcontractor's method of providing notice of the lien to the property owner did not comply with applicable statutory law, O.C.G.A. § 44-14-361.1(a)(2), since that statute expressly allowed the lien notice to be provided to the property owner by registered mail, certified mail, or statutory overnight delivery, and not though the facsimile transmission that the subcontractor used, especially since the facsimile transmission was not the equivalent method of providing notice as those methods set forth in the statute. Phillips, Inc. v. Historic Props. of Am., 260 Ga. App. 886, 581 S.E.2d 389 (2003).

Notice of commencement defective.

- Grant of summary judgment to the property owner on a materialman's lien was reversed because it failed to identify or provide contact information for its construction lender in its Notice of Commencement, rendering it fatally defective under O.C.G.A. § 44-14-361.5(d) and because the Notice of Commencement did not substantially comply with § 44-14-361.5(b), the material supplier's failure to file its Notice to Contractor within the prescribed time was excused under § 44-14-361.5(d). Capitol Materials, Inc. v. JLB Buckhead, LLC, 337 Ga. App. 848, 789 S.E.2d 803 (2016).

Timely action against contractor prerequisite.

- Lien claimant had to commence a timely action against a contractor under the statute as a prerequisite to suing the owner on the bond, as such, the property owner did not create a new cause of action for the lien claimant by filing a bond under O.C.G.A. § 44-14-364; the bond stood in the place of the real property as security for the lien claimant and because no new action was created, the lien claimant in an action on the bond still had to comply with the statutory requirements for perfecting a lien. Few v. Capitol Materials Inc., 274 Ga. 784, 559 S.E.2d 429 (2002).

Reasonable time for filing notice.

- A period of 16 days between the date of the filing of the foreclosure suit in one county, where the foreign corporate defendant maintained its registered office, and the date of the filing of the notice of suit, with reference to giving notice to the bona fide purchasers of the property subject to the lien, was not so unreasonable so as to render the claim unenforceable, in that the language of O.C.G.A. § 44-14-361.1(a)(3) requires only a reasonable time for the filing of the notice after the suit had been filed. American Hosp. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790, 320 S.E.2d 857 (1984) (decided prior to 1991 amendment).

Three months meant three calendar months, not 90 days.

- The 1991 version of O.C.G.A. § 44-14-361.1, requiring a contractor to file the contractor's claim of lien three months from the completion of the work, governed and was satisfied by the contractor's filing the claim of lien on September 12 following the completion of work on June 13. The court rejected the owner's argument that "three months" meant 90 days. Fed. Trust Bank v. C. W. Matthews Contr. Co., 312 Ga. App. 200, 718 S.E.2d 63 (2011).

Recording a judgment on real property records some months after commencing a suit does not satisfy the requirement of former O.C.G.A. § 44-14-362(3) (now O.C.G.A. § 44-14-361.1(a)(3)) that notice be filed "at the time of filing such action," and is fatal to a claim of a statutory lien. Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 31 Bankr. 119 (Bankr. N.D. Ga. 1983) (decided prior to 1991 amendment).

Section deals with actions against contractors, not owners.

- The requirement of O.C.G.A. § 44-14-361.1(a)(3) as to the time within which an action may be commenced relates to the materialman's action against the contractor and not to the action against the owner of the real estate. Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 26 Bankr. 394 (Bankr. N.D. Ga. 1983).

Collection action not required where lessee in bankruptcy.

- Bankruptcy of the lessee who had contracted for the leasehold improvements with the unpaid contractor relieved the contractor from the requirement that a collection action against the lessee be commenced before a lien enforcement action could be brought against the lessor. Underground Festival, Inc. v. McAfee Eng'r Co., 214 Ga. App. 243, 447 S.E.2d 683 (1994).

Creditor's time for action tolled under bankruptcy provisions.

- Bankruptcy court held that the procedure under O.C.G.A. § 44-14-361.1 to "make good" a mechanic's or materialman's lien involved creating the lien, not mere perfection, and these acts were subject to an automatic stay; accordingly, because the automatic stay prevented the creditor from complying with O.C.G.A. § 44-14-361.1, the creditor's failure to take further action under that statute was tolled under 11 U.S.C. § 108. In re Durango Ga. Paper Co., 297 Bankr. 316 (Bankr. S.D. Ga. 2003).

Creditor's action not tolled under bankruptcy provisions.

- Chapter 11 trustee could avoid a creditor's mechanic's lien pursuant to 11 U.S.C. § 545(2) because the requirements of the Georgia Lien Statute, O.C.G.A. § 44-14-360 et seq., were acts of perfecting rather than creating or enforcing a lien and, therefore, 11 U.S.C. § 108(c)(2) did not toll creditor's obligation to timely comply with the statute; the creditor's failure to comply with the Georgia Lien Statute's requirements within the statute's time limits and receive the protection of relation back perfection under 11 U.S.C. § 546(b) permitted the trustee to avoid the lien under 11 U.S.C. § 545(2). Durango Ga. Paper Co. v. Milton J. Wood Fire Prot., Inc. (In re Durango Ga. Paper Co.), 356 Bankr. 305 (Bankr. S.D. Ga. 2005).

Avoidance of mechanic's lien in bankruptcy.

- Chapter 7 trustee's right to avoid mechanic's lien on estate property, which attached post-petition and without the trustee's consent or authorization by the court, was not limited by relevant state law because at no point since assuming duties as trustee had the trustee consented to any work being done by the transferee on the property, which was required for a lien to attach. Scarver v. Ellis (In re McKeever), 567 Bankr. 652 (Bankr. N.D. Ga. 2017).

Where action against contractor timely, action against owner need not be commenced within 12 months.

- An action to enforce the lien against the owner need not be instituted within the 12-month statutory period if a claim has been filed by the materialman in the contractor's bankruptcy proceedings during that time, and the filing of the bankruptcy claim satisfies the requirement of former O.C.G.A. § 44-14-362(3) (now O.C.G.A. § 44-14-361.1(a)(3)) of commencing an action within 12 months. Newton Lumber & Supply, Inc. v. Crumbley, 161 Ga. App. 741, 290 S.E.2d 114 (1982); Galbreath v. Vondenkamp, 197 Ga. App. 284, 398 S.E.2d 278 (1990).

Determination of when claims become due.

- The "due date" for purposes of O.C.G.A. § 44-14-361.1(a)(3) does not include an inspection period, but is determined from the last date the equipment was provided for the improvement of the real estate. In accordance with the mandate that Georgia's materialmen's lien law should be dealt with according to the strictest rules of strict construction, the three month period contemplated by O.C.G.A. § 44-14-361.1(a)(2) commences on the last date materials are furnished; there is no reason to treat the calculation of the 12-month period contemplated by O.C.G.A. § 44-14-361(a)(3) differently. Cent. Atlanta Tractor Sales, Inc. v. Athena Dev., LLC, 289 Ga. App. 355, 657 S.E.2d 290 (2008).

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), cert. denied, No. S09C0486, 2009 Ga. LEXIS 184 (Ga. 2009).

Failure to state date claim became due did not render lien invalid.

- Summary judgment for an owner in a supplier's suit to enforce a materialman's lien was improper because O.C.G.A. § 44-14-361.1(a)(2) tempered the principle of strict construction with respect to the form of the claim of lien, and the fact that the lien failed to state the date the supplier's claim became due did not render the lien invalid; the claim of lien complied "in substance" with the required form. Vulcan Constr. Materials, LP v. Franklin Builders Props., Inc., 298 Ga. App. 120, 679 S.E.2d 356 (2009).

Amendment of pleadings.

- O.C.G.A. § 9-11-15(c), which permits amendments to relate back to the time of the original pleading, is applicable to an action to enforce a lien under O.C.G.A. § 44-14-361.1. Coe & Payne Co. v. Foster & Kleiser, Inc., 258 Ga. 161, 366 S.E.2d 292 (1988).

No amendment of expired claims.

- O.C.G.A. § 9-11-15(c) which permits amendments to relate back to the time of the original pleading, is inapplicable to an expired action to enforce a lien under O.C.G.A. § 44-14-361.1(a)(2)'s three-month limitations period. Tri-City Constr. Co. v. Sandy Plains Partnership, 206 Ga. App. 506, 426 S.E.2d 57 (1992).

Lis pendens proper where specific performance requested.

- Where purchasers requested specific performance of a contract requiring the property involved to be sold to them, the property was "directly involved," lis pendens was proper, the pleadings were privileged, and its filing was simply notice of the suit, not defamation of the title. Panfel v. Boyd, 187 Ga. App. 639, 371 S.E.2d 222 (1988).

Materialman's allegedly inadequate notice.

- Trial court properly granted summary judgment to the materialman on its action to recover on a lien release bond after an electrical subcontractor did not pay for materials supplied to it by the materialman, and despite the claim of the general contractor and the surety that the materialman did not comply with a lien statute notice requirement; the lien statute notice requirement was meant to protect prospective purchasers from unknowingly buying property encumbered by liens and did not apply to the materialman's situation because the materialman, acting as a lien claimant, was attempting to recover on a lien discharge bond that the general contractor and the surety had filed to discharge the lien against the electrical contractor. Washington Intl Ins. Co. v. Hughes Supply, Inc., 271 Ga. App. 50, 609 S.E.2d 99 (2004).

Action untimely filed.

- A supplier of equipment had not brought its claim against a contractor within 12 months of when the claim became due, as required by O.C.G.A. § 44-14-361.1(a)(3); the 12-month period did not include a period for the inspection of the returned equipment, but was determined from the last date the equipment was furnished for the improvement of the real estate. Cent. Atlanta Tractor Sales, Inc. v. Athena Dev., LLC, 289 Ga. App. 355, 657 S.E.2d 290 (2008).

Concurrent action.

- Subcontractor did not fail to comply with the lien statute in filing a concurrent action against a general contractor on the underlying contract and against the property owner and the surety on the discharge bond because the concurrent action filed by the subcontractor against the general contractor, the owner, and the surety was permitted by the decision of the court of appeals in a prior case; in that case, the court of appeals determined that the subcontractor's action against the general contractor and its action against the owner to enforce the lien could be brought concurrently and could be combined in the same petition. Madison Retail Suwanee, LLC v. Orion Enters. Sales & Serv., 309 Ga. App. 712, 711 S.E.2d 71 (2011).

Notice in action against property owner.

- The fact that a materialman timely filed notice of claim to enforce a lien against the bankrupt general contractor pursuant to O.C.G.A. § 44-14-361.1(a)(3) did not mean that it was not required to file a second notice pursuant to O.C.G.A. § 44-14-361.1(a)(4) in connection with an action against the property owner. Calhoun/Johnson Co. v. Houston Family Trust No. 1, 236 Ga. App. 793, 513 S.E.2d 759 (1999).

Because O.C.G.A. § 44-14-361.1(a)(4) provided that where a contractor was adjudicated bankrupt or, if after an action was filed, no final judgment could be obtained against the contractor because of its adjudication in bankruptcy, the materialman was not required to file an action or obtain judgment against the contractor before enforcing a lien against the improved property; moreover, the materialman could enforce the lien directly against the property by filing an action against the owner within 12 months from the time the lien became due. SAKS Assocs., LLC v. Southeast Culvert, Inc., 282 Ga. App. 359, 638 S.E.2d 799 (2006).

A property owner is entitled to credit for any payments made to the contractor which are shown by competent and relevant evidence to have been applied to valid claims for material or labor. Taverrite v. Lowe's of Franklin, Inc., 166 Ga. App. 346, 304 S.E.2d 78 (1983).

Cost of completing work deducted from contract price when contractor abandons contract.

- Where a contractor, under a definite contract containing a stipulated price for the entire work, undertakes to erect a building on a lot of land and abandons the construction of the building, the owner may complete the work; and if the owner does so, the necessary cost of so doing may be deducted from the contract price, and the property will be subject to the liens of materialmen and laborers to the extent only of the balance. Adams v. W.P. Stephens Lumber Co., 158 Ga. App. 761, 282 S.E.2d 217 (1981).

The trial court correctly granted the property owner's motion for summary judgment as the $59,928 applied under the contract plus the $123,974 spent to complete the house, totaled $183,902, which was $1,902 in excess of the contract price. Maverick Materials, Inc. v. Kauffman, 227 Ga. App. 102, 488 S.E.2d 690 (1997).

Contractor's liability for materials where subcontractor abandons project.

- Where, before construction of a building was completed, a materialman filed its claim of lien for unpaid materials supplied to a subcontractor, and the owner continued to make payments to the contractor who continued to pay the subcontractor, the subcontractor's eventual bankruptcy and abandonment of the project were the responsibility of the contractor. That abandonment had no bearing on the materialman's right to foreclose its lien for such materials as were furnished to the subcontractor and actually used in the project. Mayer Elec. Supply Co. v. Federal Ins. Co., 195 Ga. App. 191, 393 S.E.2d 270 (1990).

Materialman or subcontractor not entitled to judgment in rem where entire contract price expended.

- Where it is necessary to expend the entire contract price in completing the construction called for by the contract, the materialman or subcontractor is not entitled to a judgment in rem against the property. Adams v. W.P. Stephens Lumber Co., 158 Ga. App. 761, 282 S.E.2d 217 (1981).

Procedural error made error in lien draft irrelevant.

- An attorney was properly granted summary judgment in a legal malpractice suit as to an issue of whether the attorney inadequately drafted a lien as the lien foreclosure action was filed by another attorney, who failed to comply with the notice requirement of O.C.G.A. § 44-14-361.1(a), which made the adequacy of the legal description in the lien irrelevant due to that procedural error. Bonner Roofing & Sheet Metal Co. v. Karsman, 285 Ga. App. 586, 646 S.E.2d 763 (2007).

Dormancy of judgment on materialman's lien.

- Trial court erred in granting summary judgment to the lumber company in the company's suit against the property owner to foreclose on a materialman's lien to recover the price of materials sold to the contractor and used to construct the owner's home because the dormancy statute barred foreclosure on the lien more than seven years after the lien was perfected because, when the lumber company failed to take action on the default judgment against the contractor, and the judgment became unenforceable at the end of seven years, the lien was no longer valid and there was nothing to foreclose upon. Lang v. Brand-Vaughan Lumber Co., Inc., 339 Ga. App. 710, 792 S.E.2d 461 (2016).

Required showing.

- To establish and foreclose a lien on the owner's property it must be shown that the owner contracted with someone for these supplies to be furnished, that the person to whom the plaintiff furnished them was connected with that contract, and that the value of the material was within the contract price to which the owner agreed. Spicewood, Inc. v. Dykes Paving & Constr. Co., 199 Ga. App. 165, 404 S.E.2d 305 (1991).

ALR.

- Delivery of material to building site as sustaining mechanic's lien - modern cases, 32 A.L.R.4th 1130.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - construction cases, 104 A.L.R.6th 1.