2020 Georgia Code
Title 44 - Property
Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens
Article 8 - Liens
Part 3 - Mechanics and Materialmen
§ 44-14-361.5. Liens of Persons Without Privity of Contract

1. To make good the liens specified in paragraphs (1), (2), and (6) through (9) of subsection (a) of Code Section 44-14-361, any person having a right to a lien who does not have privity of contract with the contractor and is providing labor, services, or materials for the improvement of property shall, within 30 days from the filing of the notice of commencement or 30 days following the first delivery of labor, services, or materials to the property, whichever is later, give a written notice to contractor as set out in subsection (c) of this Code section to the owner or the agent of the owner and to the contractor for a project on which there has been filed with the clerk of the superior court a notice of commencement setting forth therein the information required in subsection (b) of this Code section.
2. Not later than 15 days after the contractor physically commences work on the property, a notice of commencement shall be filed by the owner, the agent of the owner, or by the contractor with the clerk of the superior court in the county in which the project is located. A copy of the notice of commencement shall be posted on the project site. The notice of commencement shall include:
   1. The name, address, and telephone number of the contractor;
   2. The name and location of the project being constructed and the legal description of the property upon which the improvements are being made;
   3. The name and address of the true owner of the property;
   4. The name and address of the person other than the owner at whose instance the improvements are being made, if not the true owner of the property;
   5. The name and the address of the surety for the performance and payment bonds, if any; and
   6. The name and address of the construction lender, if any.

      The contractor shall be required to give a copy of the notice of commencement to any subcontractor, materialman, or person who makes a written request of the contractor. Failure to give a copy of the notice of commencement within ten calendar days of receipt of the written request from the subcontractor, materialman, or person shall render the provision of this Code section inapplicable to the subcontractor, materialman, or person making the request.

3. A notice to contractor shall be sent by registered or certified mail or statutory overnight delivery to the owner or the agent of the owner and to the contractor at the addresses set forth in the notice of commencement setting forth:
   1. The name, address, and telephone number of the person providing labor, services, or materials;
   2. The name and address of each person at whose instance the labor, services, or materials are being furnished;
   3. The name of the project and location of the project set forth in the notice of commencement; and
   4. A description of the labor, services, or materials being provided and, if known, the contract price or anticipated value of the labor, services, or materials to be provided or the amount claimed to be due, if any.
4. The failure to file a notice of commencement shall render the provisions of this Code section inapplicable.The filing of a notice of commencement shall not constitute a cloud, lien, or encumbrance upon or defect to the title of the real property described in the notice of commencement, nor shall it alter the aggregate amounts of liens allowable, nor shall it affect the priority of any loan in which the property is to secure payment of the loan filed before or after the notice of commencement, nor shall it affect the future advances under any such loan.Nothing contained in this Code section shall affect the provisions of Code Section 44-14-361.2.
5. 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 notice of commencement shall be indexed under the name of the true owner and the contractor as contained in the notice of commencement.

(Code 1981, §44-14-361.5, enacted by Ga. L. 1993, p. 1008, § 1; Ga. L. 1995, p. 672, § 1; Ga. L. 2008, p. 1063, § 3/SB 374; Ga. L. 2013, p. 141, § 44/HB 79; Ga. L. 2014, p. 866, § 44/SB 340.)

The 2008 amendment, effective March 31, 2009, in subsection (c), substituted "sent by registered or certified mail or statutory overnight delivery" for "given" in the introductory paragraph, and revised capitalization throughout the subsection.

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, revised capitalization throughout this Code section.

The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, revised capitalization in subsection (a).

- For survey article on construction law, see 59 Mercer L. Rev. 55 (2007). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For annual survey on construction law, see 61 Mercer L. Rev. 65 (2009). For article, "Non-Privity Lien Rights on Private Construction Projects: The Court of Appeals of Georgia Provides Clarity," see 15 (No. 5) Ga. St. B.J. 20 (2010). For annual survey on construction law, see 64 Mercer L. Rev. 71 (2012). For annual survey on construction law, see 69 Mercer L. Rev. 63 (2017). For note on 1993 enactment of this section, see 10 Ga. St. U. L. Rev. 211 (1993).

JUDICIAL DECISIONS

Notice not required when filing lien.

- A Notice of Commencement that failed to identify the true owner of the property upon which improvements were being made and failed to include a legal description of the property was fatally deficient, and therefore, under O.C.G.A § 14-44-361.5(d), a sub-subcontractor that provided labor services to the project was relieved of the obligations regarding Notice to Contractor outlined in § 14-44-361.5(a), (c) when filing a materialman's lien. Harris Ventures, Inc. v. Mallory & Evans, Inc., 291 Ga. App. 843, 662 S.E.2d 874 (2008), cert. denied, No. S08C1725, 2008 Ga. LEXIS 790 (Ga. 2008).

- O.C.G.A. § 44-14-361.5(a) and (d) do not require the filing of a Notice of Commencement within the 15-day deadline as a general condition to providing a Notice to Contractor. The failure to file a Notice of Commencement as provided in § 44-14-361.5(d) applies when there has been a total failure to file a Notice of Commencement at the time when a materialman must give a written Notice to Contractor to perfect its lien under § 44-14-361.5(a). Beacon Med. Prods. v. Travelers Cas. & Sur. Co., 292 Ga. App. 617, 665 S.E.2d 710 (2008).

- A supplier was not entitled to recover on a materialman's lien discharge bond because it had not perfected the lien by filing a Notice to Contractor under O.C.G.A. § 44-14-361.5(a). The fact that the general contractor did not file its Notice of Commencement within 15 days did not relieve the supplier of its duty to file the Notice to Contractor; moreover, because the supplier did have record notice of the Notice of Commencement, which was filed nearly four months before the supplier first provided materials for the project, the purpose of the statute was satisfied. Beacon Med. Prods. v. Travelers Cas. & Sur. Co., 292 Ga. App. 617, 665 S.E.2d 710 (2008).

Supplier to a subcontractor on a construction project was not entitled to recover on a materialman's lien under O.C.G.A. § 44-14-361.5 because the supplier failed to file a Notice to Contractor as required. The contractor's late filing of the Notice of Commencement did not relieve the supplier of the supplier's duty to provide notice. Southeast Culvert, Inc v. Hardin Bros., LLC, 312 Ga. App. 158, 718 S.E.2d 28 (2011), cert. denied, No. S12C0377, 2012 Ga. LEXIS 233 (Ga. 2012).

- Trial court did not err in granting a general contractor and the contractor's surety summary judgment in a supplier's action to recover under a payment bond and a lien discharge bond for monies a subcontractor owed the contractor for materials it supplied to a construction project because the supplier's notice to the contractor failed to comply with O.C.G.A. §§ 10-7-31(a) and44-14-361.5(c) because the notice wholly omitted required information; although the supplier's notice to the contractor set forth the subcontractor's name, it failed to provide any address for the subcontractor as required under §§ 10-7-31(a)(2) and44-14-361.5(c)(2), and although the notice set forth the name of the project, the notice failed to state the location of the construction project pursuant to §§ 10-7-31(a)(3) and44-14-361.5(c)(3). Consol. Pipe & Supply Co. v. Genoa Constr. Servs., 302 Ga. App. 255, 690 S.E.2d 894 (2010).

- As a general contractor's notice of commencement under O.C.G.A. § 44-14-361.5(b) substantially complied when the contractor's notice only omitted the contractor's telephone number, a supplier still had a duty to file a notice to the contractor under § 44-14-361.5(a) and (c); accordingly, summary judgment to the supplier was error on the supplier's lien-discharge bond claim as the supplier had failed to file the notice with the contractor. Fid. & Deposit Co. v. Lafarge Bldg. Materials, Inc., 312 Ga. App. 821, 720 S.E.2d 288 (2011).

- General contractor's failure to post a notice of commencement at a job site as required by O.C.G.A. § 44-14-365.1(b) did not absolve a subcontractor from compliance with the special lien perfection requirements in § 44-14-361.5(a), (c); while the statute specifically stated that a failure to file a notice of commencement with the clerk of the superior court where a construction project was located would result in a subcontractor not having to comply with § 44-14-361.5(a), (c), no such language was included in the statute regarding the failure to post a notice of commencement at a job site. Rey Coliman Contrs., Inc. v. PCL Constr. Servs., 296 Ga. App. 892, 676 S.E.2d 298 (2009).

- Construing the pleadings in a light most favorable to showing a question of fact, in an action in which: (1) the pleadings did not disclose with certainty that a supplier would not be entitled to relief in its action against a general contractor and the contractor's surety; and (2) the appeals court did not consider the supplier's averments that its "Notice to Owner/Contractor" complied with O.C.G.A. §§ 10-7-31 and44-14-361.5 or its admission that it received a copy of the notice of commencement to establish that the general contractor's notice of commencement was otherwise proper and timely filed as required by the statutes, the general contractor and its surety were not entitled to judgment on the pleadings. Consol. Pipe & Supply Co. v. Genoa Constr. Servs., Inc., 279 Ga. App. 894, 633 S.E.2d 59 (2006).

- 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).

- In the general contractor's action against the materials provider relating to the provider's request for payment under a payment bond, the general contractor's notice of commencement and the provider's notice to contractor complied with O.C.G.A. § 10-7-31; although the notice of commencement stated that it was pursuant to O.C.G.A. § 44-14-361.5 and the notice to contractor stated that it was sent under O.C.G.A. § 44-14-361, O.C.G.A. § 10-7-31 did not require that either of the notices be expressly labeled as being provided under the statute, the notices contained the pertinent information contemplated by O.C.G.A. § 10-7-31, including that the general contractor had provided a payment bond and that the provider had provided materials for the project through improvements made by the subcontractor, and the notice of commencement was not misfiled under O.C.G.A. § 10-7-31(d) because it was labeled as provided under O.C.G.A. § 44-14-361.5, as the indexing requirements of both statutes were substantially identical. Sierra Craft, Inc. v. T. D. Farrell Constr., Inc., 282 Ga. App. 377, 638 S.E.2d 815 (2006), cert. denied, No. S07C0460, 2007 Ga. LEXIS 145 (Ga. 2007).

- A contractor's notice of commencement that described the property by street address only, without a legal description, and that did not list the name of the property's true owner, but the name under which the owner did business, was fatally defective under O.C.G.A. § 44-14-361.5, thus relieving a lien claimant of the duty to file a notice to contractor. GE v. North Point Ministries, Inc., 289 Ga. App. 382, 657 S.E.2d 297 (2008).

The requirement to furnish a legal description of the property and the name of the true owner are matters of substance, not mere technicalities, and providing merely the property's street address and an "a/k/a" name for the owner amounts to neither actual nor substantial compliance with the provisions of O.C.G.A. § 44-14-361.5. Either of these defects on the face of a notice of commencement will render the notice insufficient to trigger the provisions of O.C.G.A. § 44-14-361.5, so that a lien claimant is relieved of the obligation to provide a notice to contractor in order to preserve its lien. GE v. North Point Ministries, Inc., 289 Ga. App. 382, 657 S.E.2d 297 (2008).

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).

OPINIONS OF THE ATTORNEY GENERAL

Section not applicable to public works.

- The provisions of O.C.G.A. § 44-14-361.5 pertaining to the filing of a Notice of Commencement of work are not applicable to a state authority with regard to construction projects on public property; however, a contractor performing a public works contract for a state authority is required to file a notice in accordance with former O.C.G.A. § 36-82-104(f). 1995 Op. Att'y Gen. No. 95-43.