2020 Georgia Code
Title 44 - Property
Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens
Article 8 - Liens
Part 3 - Mechanics and Materialmen
§ 44-14-360. Definitions

As used in this part, the term:

(.1) "Business day" means any day that is not a Saturday, Sunday, or legal holiday.

1. "Contractor" means a contractor having privity of contract with the owner of the real estate.
2. "Land surveyor" means the same as the definition thereof in Code Section 43-15-2.

   (2.1) "Lien action" means a lawsuit, proof of claim in a bankruptcy case, or a binding arbitration.

3. "Materials," in addition to including those items for which liens are already permitted under this part, means tools, appliances, machinery, or equipment used in making improvements to the real estate, to the extent of the reasonable value or the contracted rental price, whichever is greater, of such tools, appliances, machinery, or equipment.
4. "Materialmen" means all persons furnishing the materials, tools, appliances, machinery, or equipment included in the definition of materials in paragraph (3) of this Code section.
5. "Professional engineer" means the same as the definition thereof in Code Section 43-15-2.
6. "Registered forester" means the same as the definition of such term in Code Section 12-6-41.
7. "Registered land surveyors" and "registered professional engineers" means land surveyors or professional engineers who are registered as land surveyors or professional engineers under Chapter 15 of Title 43 at the time of performing, rendering, or furnishing services protected under this part.
8. "Residential property" means single-family and two-family, three-family, and four-family residential real estate.
9. "Subcontractor" means, but is not limited to, subcontractors having privity of contract with the contractor.

(Ga. L. 1873, p. 42, §§ 1, 7; Code 1873, §§ 1972, 1979; Code 1882, §§ 1972, 1979; Ga. L. 1893, p. 34, §§ 1, 2; Ga. L. 1895, p. 27, § 1; Civil Code 1895, §§ 2787, 2801; Ga. L. 1897, p. 30, §§ 1, 2; Ga. L. 1899, p. 33, § 1; Civil Code 1910, §§ 3329, 3336, 3352; Code 1933, §§ 67-1701, 67-2001; Ga. L. 1953, Jan.-Feb. Sess., p. 582, §§ 1, 2; Ga. L. 1956, p. 185, §§ 1, 5, 6, 7; Ga. L. 1956, p. 562, §§ 1, 2; Ga. L. 1978, p. 243, § 1; Ga. L. 1983, p. 1450, § 1; Ga. L. 1985, p. 1322, § 1; Ga. L. 1991, p. 915, § 1; Ga. L. 2008, p. 1063, § 1/SB 374.)

The 2008 amendment, effective March 31, 2009, added paragraphs (.1) and (2.1).

- 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). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 166 (1992).

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).

Scenery and other stage and science outfit of an opera house are "material" for improving real estate, within O.C.G.A. § 44-14-360. Waycross Opera House Co. v. Sossman, 94 Ga. 100, 20 S.E. 252, 47 Am. St. R. 144 (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 Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279, 277 S.E.2d 282 (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 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

- 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 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (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).

- 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).

- 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).

- 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); D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68 (1967).

- 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).

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).

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).

- 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).

- 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).

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).

- O.C.G.A. § 44-14-360 provides a lien only to materialmen who may have supplied the materials directly 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, aff'd, 229 Ga. 803, 194 S.E.2d 472 (1972).

- 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).

- 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).

- 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, aff'd, 229 Ga. 803, 194 S.E.2d 472 (1972).

- 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 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (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).

- 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).

- 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).

Cited in Georgia N. Contracting, Inc. v. Haney & Haney Constr. & Mgt. Corp., 204 Ga. App. 366, 419 S.E.2d 348 (1992).