O.C.G.A.

O.C.G.A. § 44-14-361.3 (2019)

Preliminary notice of lien; form; notice to contractor; filing; necessity of preliminary notice

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) Prior to filing a claim of lien, a person having a lien under paragraphs (1) through (8) and (10) of subsection (a) of Code Section 44-14-361 may at such person’s option file a preliminary notice of lien rights. The preliminary notice of lien rights in order to be effective shall: (1) Be filed with the clerk of superior court of the county in which the real estate is located within 30 days after the date a party delivered any materials or provided any labor or services for which a lien may be claimed; (2) State the name, address, and telephone number of the potential lien claimant; (3) State the name and address of the contractor or other person at whose instance the labor, services, or materials were furnished; (4) State the name of the owner of the real estate and include a description sufficient to identify the real estate against which the lien is or may be claimed; and (5) Include a general description of the labor, services, or materials furnished or to be furnished. (b) A party filing a preliminary notice of lien rights except a contractor shall, within seven days of filing the notice, send by registered or certified mail or statutory overnight delivery a copy of the notice to the contractor on the property named in the notice or to the owner of the property. The lien claimant may rely on the building permit issued on the property for the name of the contractor. (c) The clerk of each superior court shall maintain within the records of that office a record separate from all other real estate records in which preliminary notices specified in subsection (a) of this Code section and affidavits specified in subsection (c) of Code Section 44-14361.4 shall be filed. Each such notice and affidavit shall be indexed under the name of the owner as contained in the preliminary notice. The clerk shall collect a filing fee of $5.00 for the filing of each preliminary notice. (d) A person having a lien under paragraphs (1) through (8) and (10) of subsection (a) of Code Section 44-14-361 may enforce the lien without filing a preliminary notice of lien.

History

Code 1981, § 44-14-361.3, enacted by

Ga. L. 1983, p. 1450, § 1; Ga. L. 1985, p. 1322, § 4; Ga. L. 2000, p. 1589, § 3; Ga. L.

2021, p. 674, § 5/HB 480. The 2021 amendment, effective May 10, 2021, inserted “and (10)” near the beginning of subsection (a) and in subsection (d). See Editor’s notes for applicability.

Annotations

Editor’s notes. Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

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.

JUDICIAL DECISIONS Filing a preliminary notice of lien is optional, and it is not a prerequisite for filing a claim of lien in Georgia. Wa-

chovia Bank v. American Bldg. Consultants, Inc., 138 B.R. 1015, 1992 Bankr. LEXIS 384 (Bankr. N.D. Ga. 1992).

Notes of Decisions

Cited in 5 cases, 1991–2009 · leading case: Hicks v. McLain's Bldg. Materials, Inc., 433 S.E.2d 114 (Ga. Ct. App. 1993).

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Hicks v. McLain's Bldg. Materials, Inc., 433 S.E.2d 114 (Ga. Ct. App. 1993). · cites it 4× “93, appellant relies on OCGA § 44-14-362, which provides that upon payment of the underlying claim, a person who has filed a preliminary notice of lien rights pursuant to OCGA § 44-14-361.3 must cancel the preliminary notice within ten days or be liable to the owner for all…”

Troup Enter. v. Mitchell, Carrington & Rayfield, Inc., 404 S.E.2d 337 (Ga. Ct. App. 1991). · cites it 4× “747, 748 ( 362 SE2d 452 ) (1987), and allowance of preliminary notice of lien by OCGA § 44-14-361.3 support the validity of that view.”

Rey Coliman Contractors, Inc. v. PCL Constr. Servs., Inc., 676 S.E.2d 298 (Ga. Ct. App. 2009). · cites it 2× “(e) The clerk of each superior court shall file the Notice of Commencement within the records of that office and maintain an index separate from other real estate records or an index with the preliminary notices specified in subsection (a) of Code Section 44-14-361.3. Each such…”

Wachovia Bank of Georgia, N.A. v. Am. Bldg. Consultants, Inc. (In Re Am. Bldg. Consultants, Inc.), 138 B.R. 1015 (Bankr. N.D. Ga. 1992). · cites it 2× “The trustee has argued that DCA should have filed a preliminary notice of lien pursuant to O.C.G.A. § 44-14-361.3. Filing a preliminary notice of lien is optional, and it is not a prerequisite for filing a claim of lien in Georgia.”

Shockley Plumbing Co. v. Nationsbank, N.A., 493 S.E.2d 227 (Ga. Ct. App. 1997). · cites it 2× “Shockley did not, however, at any time prior to filing his lien, file a preliminary notice of lien rights as allowed under OCGA § 44-14-361.3. It is undisputed that NationsBank, as principal and surety, subsequently executed and filed a bond to discharge the lien.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.