2019 Georgia Code
Title 44 - Property
Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens
Article 8 - Liens
Part 3 - Mechanics and Materialmen
§ 44-14-366. Waiver of lien or claim upon bond in advance of furnishing labor, services, or materials void; interim waiver and release upon payment; unconditional waiver and release upon final payment; affidavit of nonpayment
(a) A right to claim a lien or to claim upon a bond may not be waived in advance of furnishing of labor, services, or materials. Any purported waiver or release of lien or bond claim or of this Code section executed or made in advance of furnishing of labor, services, or materials is null, void, and unenforceable.
(b) No oral or written statement by the claimant purporting to waive, release, impair, or otherwise adversely affect a lien or bond claim is enforceable or creates an estoppel or impairment of claim of lien or claim upon a bond unless:
(1) It is pursuant to a waiver and release form duly executed by claimant prescribed below; and
(2) The claimant has received payment for the claim as set forth in subsection (f) of this Code section.
(c) When a claimant is requested to execute a waiver and release in exchange for or in order to induce payment other than final payment, the waiver and release shall substantially follow the following form, in boldface capital letters in at least 12 point font and the priority of such claimant's lien rights, except as to retention, shall upon such payment thereafter run from the day after the date specified in such Interim Waiver and Release upon Payment form:
"INTERIM WAIVER AND RELEASE
UPON PAYMENT
STATE OF GEORGIA
COUNTY OF
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY
(NAME OF CONTRACTOR) TO FURNISH (DESCRIBE
MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS
(TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE
CITY OF , COUNTY OF , AND IS OWNED BY
(NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING
EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND
LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
UPON THE RECEIPT OF THE SUM OF $ , THE MECHANIC AND/OR MATERIALMAN
WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE
FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR
MATERIAL BOND THROUGH THE DATE OF (DATE) AND EXCEPTING THOSE RIGHTS
AND LIENS THAT THE MECHANIC AND/OR MATERIALMAN MIGHT HAVE IN ANY RETAINED
AMOUNTS, ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE
UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID BUILDING OR
PREMISES.
GIVEN UNDER HAND AND SEAL THIS DAY OF , .
(SEAL)
(WITNESS)
(ADDRESS)
NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE
CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED ABOVE, EVEN
IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS AFTER THE DATE
STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF NONPAYMENT OR A CLAIM
OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY PERIOD. THE FAILURE TO
INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF THE FORM SHALL RENDER THE FORM
UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. SECTION
44-14-366."
Provided, however, that the failure to correctly complete any of the blank
spaces in the above form shall not invalidate said form so long as the subject
matter of said release may reasonably be determined.
(d) When a claimant is requested to execute a waiver and release in
exchange for or in order to induce making of final payment, the waiver and
release shall substantially follow the following form in boldface capital
letters in at least 12 point font:
"WAIVER AND RELEASE
UPON FINAL PAYMENT
STATE OF GEORGIA
COUNTY OF
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY
(NAME OF CONTRACTOR) TO FURNISH (DESCRIBE
MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS
(TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE
CITY OF , COUNTY OF , AND IS OWNED BY
(NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING
EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND
LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
UPON THE RECEIPT OF THE SUM OF $ , THE MECHANIC AND/OR MATERIALMAN
WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE
FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR
MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE
UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID PROPERTY.
GIVEN UNDER HAND AND SEAL THIS DAY OF , .
(SEAL)
(WITNESS)
(ADDRESS)
NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE
CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED ABOVE, EVEN
IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS AFTER THE DATE
STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF NONPAYMENT OR A CLAIM
OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY PERIOD. THE FAILURE TO
INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF THE FORM SHALL RENDER THE FORM
UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. SECTION
44-14-366."
Provided, however, that the failure to correctly complete any of the blank
spaces in the above form shall not invalidate said form so long as the subject
matter of said release may reasonably be determined.
(e) Nothing contained in this Code section shall affect:
(1) The enforceability of any subordination of lien rights by a
potential lien claimant to the rights of any other party which may have or
acquire an interest in all or any part of the real estate, factories,
railroads, or other property for which the potential lien claimant has
furnished labor, services, or material, even though such subordination is
entered into in advance of furnishing labor, services, or material and even
though the claimant has not actually received payment in full for its claim;
(2) The enforceability of any waiver of lien rights given in connection
with the settlement of a bona fide dispute concerning the amount due the lien
claimant for labor, services, or material which have already been furnished;
(3) The validity of a cancellation or release of a recorded claim of
lien or preliminary notice of lien rights; or
(4) The provisions of paragraph (2) of subsection (a) of Code Section
44-14-361.2, paragraphs (3) and (4) of subsection (a) and subsections (b) and
(c) of Code Section 44-14-361.4, or Code Section 44-14-364.
(f) (1) When a waiver and release provided for in this Code section is
executed by the claimant, it shall be binding against the claimant for all
purposes, subject only to payment in full of the amount set forth in the
waiver and release.
(2) Such amounts shall conclusively be deemed paid in full upon the
earliest to occur of:
(A) Actual receipt of funds;
(B) Execution by the claimant of a separate written acknowledgment of
payment in full; or
(C) Sixty days after the date of the execution of the waiver and
release, unless prior to the expiration of said 60 day period the claimant
files a claim of lien or files in the county in which the property is located
an affidavit of nonpayment, using substantially the following form in boldface
capital letters in at least 12 point font:
"AFFIDAVIT OF NONPAYMENT UNDER
O.C.G.A. SECTION 44-14-366
STATE OF GEORGIA
COUNTY OF
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY
(NAME OF CONTRACTOR) TO FURNISH
(DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF
IMPROVEMENTS KNOWN AS (TITLE OF THE PROJECT OR
BUILDING) WHICH IS LOCATED IN THE CITY OF , COUNTY OF
, AND IS OWNED BY (NAME OF OWNER) AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY
USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT
DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
PURSUANT TO O.C.G.A. SECTION 44-14-366 THE UNDERSIGNED EXECUTED A
LIEN WAIVER AND RELEASE WITH RESPECT TO THIS PROPERTY DATED
, . THE AMOUNT SET FORTH IN SAID WAIVER AND RELEASE
($ ) HAS NOT BEEN PAID, AND THE UNDERSIGNED HEREBY GIVES NOTICE
OF SUCH NONPAYMENT.
THE ABOVE FACTS ARE SWORN TRUE AND CORRECT BY THE UNDERSIGNED, THIS
DAY OF , .
(SEAL)
CLAIMANT'S SIGNATURE
SWORN TO AND EXECUTED
IN THE PRESENCE OF:
WITNESS
NOTARY PUBLIC
WITHIN SEVEN DAYS OF FILING THIS AFFIDAVIT OF NONPAYMENT, THE FILING
PARTY SHALL SEND A COPY OF THE AFFIDAVIT BY REGISTERED OR CERTIFIED
MAIL OR STATUTORY OVERNIGHT DELIVERY TO THE OWNER OF THE PROPERTY. IF
THE FILING PARTY IS NOT IN PRIVITY OF CONTRACT WITH THE PROPERTY
OWNER AND A NOTICE OF COMMENCEMENT IS FILED FOR THE IMPROVEMENT ON
THE PROPERTY FOR WHICH THE FILING PARTY'S LABOR, SERVICES, OR
MATERIALS WERE FURNISHED, A COPY OF THE AFFIDAVIT SHALL BE SENT TO
THE CONTRACTOR AT THE ADDRESS SHOWN ON THE NOTICE OF COMMENCEMENT.
WHENEVER THE OWNER OF THE PROPERTY IS AN ENTITY ON FILE WITH THE
SECRETARY OF STATE'S CORPORATIONS DIVISION, SENDING A COPY OF THE
LIEN TO THE COMPANY'S ADDRESS OR THE REGISTERED AGENT'S ADDRESS ON
FILE WITH THE SECRETARY OF STATE SHALL BE DEEMED SUFFICIENT."
(3) A claimant who is paid, in full, the amount set forth in the waiver and release form after filing an affidavit of nonpayment shall upon request execute in recordable form an affidavit swearing that payment in full has been received. Upon recordation thereof in the county in which the Affidavit of Nonpayment was recorded, the affidavit of nonpayment to which it relates shall be deemed void.
(4) Nothing in this Code section shall shorten the time within which to file a claim of lien.
(5) A waiver and release provided in this Code section shall be suspended upon filing of an affidavit of nonpayment until payment in full has been received.
(6) The claimant may rely upon the information contained in the waiver and release form when completing for filing the affidavit of nonpayment or claim of lien.
Code 1981, § 44-14-366, enacted by Ga. L. 1991, p. 915, § 3; Ga. L. 1999, p. 81, § 44; Ga. L. 2008, p. 1063, § 5/SB 374; Ga. L. 2012, p. 775, § 44/HB 942.
