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. Creation of Liens; Property to Which Lien Attaches; Items to Be Included in Lien

1. The following persons shall each have a special lien on the real estate, factories, railroads, or other property for which they furnish labor, services, or materials:
   1. All mechanics of every sort who have taken no personal security for work done and material furnished in building, repairing, or improving any real estate of their employers;
   2. All contractors, all subcontractors and all materialmen furnishing material to subcontractors, and all laborers furnishing labor to subcontractors, materialmen, and persons furnishing material for the improvement of real estate;
   3. All registered architects furnishing plans, drawings, designs, or other architectural services on or with respect to any real estate;
   4. All registered foresters performing or furnishing services on or with respect to any real estate;
   5. All registered land surveyors and registered professional engineers performing or furnishing services on or with respect to any real estate;
   6. All contractors, all subcontractors and materialmen furnishing material to subcontractors, and all laborers furnishing labor for subcontractors for building factories, furnishing material for factories, or furnishing machinery for factories;
   7. All machinists and manufacturers of machinery, including corporations engaged in such business, who may furnish or put up any mill or other machinery in any county or who may repair the same;
   8. All contractors to build railroads; and
   9. All suppliers furnishing rental tools, appliances, machinery, or equipment for the improvement of real estate.
2. Each special lien specified in subsection (a) of this Code section may attach to the real estate of the owner for which the labor, services, or materials are furnished if they are furnished at the instance of the owner, contractor, or some other person acting for the owner or contractor and shall include the value of work done and materials furnished in any easement or public right of way adjoining said real estate if the work done or materials furnished in the easement or public right of way is for the benefit of said real estate and is within the scope of the owner's contract for improvements to said real estate.
3. Each special lien specified in subsection (a) of this Code section shall include the amount due and owing the lien claimant under the terms of its express or implied contract, subcontract, or purchase order subject to subsection (e) of Code Section 44-14-361.1.
4. Each special lien specified in subsection (a) of this Code section shall include interest on the principal amount due in accordance with Code Section 7-4-2 or 7-4-16.

(Ga. L. 1873, p. 42, § 7; Code 1873, § 1979; Code 1882, § 1979; Ga. L. 1893, p. 34, §§ 1, 2; Ga. L. 1895, p. 27, § 1; Civil Code 1895, § 2801; Ga. L. 1897, p. 30, §§ 1, 2; Ga. L. 1899, p. 33, § 1; Civil Code 1910, § 3352; Code 1933, § 67-2001; Ga. L. 1953, Jan.-Feb. Sess., p. 582, §§ 1, 2; Ga. L. 1956, p. 185, § 1; Ga. L. 1956, p. 562, § 2; Ga. L. 1982, p. 1144, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1983, p. 1450, § 1; Ga. L. 1985, p. 1322, § 2; Ga. L. 1991, p. 915, § 2; Ga. L. 2006, p. 738, § 1/SB 530; Ga. L. 2013, p. 1102, § 1/HB 434.)

The 2006 amendment, effective July 1, 2006, in subsection (b), near the beginning, inserted "of the owner", and substituted "are" for "were", near the middle of the subsection, inserted "the" following "furnished at", inserted "other", and deleted "or" preceding "contractor", and added "and shall include the value of work done and materials furnished in any easement or public right of way adjoining said real estate if the work done or materials furnished in the easement or public right of way is for the benefit of said real estate and is within the scope of the owner's contract for improvements to said real estate." at the end of the subsection.

The 2013 amendment, effective July 1, 2013, added subsections (c) and (d).

- Pursuant to Code Section 28-9-5, in 2006, "owner or contractor" was substituted for "owner contractor" near the middle of subsection (b).

- For article, "Some Rescission Problems in Truth-In-Lending, as Viewed From Georgia," see 7 Ga. St. B. J. 315 (1971). For article discussing role of attorney in representing subcontractor and available enforcement mechanisms, see 14 Ga. St. B.J. 104 (1978). For article, "Lien Claimants and Real Estate Lenders - The Struggle For Priority," see 16 Ga. St. B.J. 187 (1980). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For annual survey of construction law, see 43 Mercer L. Rev. 141 (1991). For annual survey article discussing materialmen's liens, see 46 Mercer L. Rev. 117 (1994). For article, "Recent Developments in Construction Law," see 5 Ga. St. B.J. 24 (1999). 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 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 65 Mercer L. Rev. 67 (2013). For note surveying revisions to Georgia Condominium Act between 1963 and 1975 regarding expansion, disclosure, liens, and incorporation, see 24 Emory L. J. 891 (1975). For note, "A New Concept: Preliminary Notice of Lien Rights," see 19 Ga. St. B.J. 42 (1982). For note on 1991 amendment of this Code section, see 8 Ga. St. U. L. Rev. 166 (1992).

ANALYSIS

• General Consideration
• Mechanics
• Contractors and Subcontractors
• Materialmen
• Machinists and Manufacturers of Machinery
• Priority of Liens
• Owner's Liability and Defenses
• Foreclosure
• Waiver of Lien

General Consideration

O.C.G.A.

§ 44-14-361 constitutional. - The Georgia materialmen's lien sections do not deprive property owners of a significant property interest without notice and hearing; they serve an important public interest and the statutes are not unconstitutional. Tucker Door & Trim Corp. v. Fifteenth St. Co., 235 Ga. 727, 221 S.E.2d 433 (1975).

- O.C.G.A. § 44-14-361 is not in violation of the provision of the Constitution which declares that no person shall be deprived of property without due process of law, or the provision which guarantees that protection to property shall be impartial and complete. Prince v. Neal-Millard Co., 124 Ga. 884, 53 S.E. 761, 4 Ann. Cas. 615 (1906).

For a discussion of historical changes in O.C.G.A. § 44-14-361, see Prince v. Neal-Millard Co., 124 Ga. 884, 53 S.E. 761, 4 Ann. Cas. 615 (1906).

§ 44-14-361 apply prospectively. - Trial court properly denied a subcontractor summary judgment as to the court's interpretation of O.C.G.A. § 44-14-361 as to materialmen liens because the trial court properly concluded that the amendments to § 44-14-361 did not apply retroactively and the trial court properly applied the version of § 44-14-361 in effect at the time the subcontractor obtained the lien in 2007. Stock Building Supply, Inc. v. Platte River Insurance Company, 336 Ga. App. 113, 783 S.E.2d 708 (2016).

- O.C.G.A. § 44-14-361 provides a lien to materialmen who have supplied the materials directly to the owner of realty or to a contractor or subcontractor engaged in making an improvement; the supplier of a supplier is not entitled to claim a lien. Pettigrew v. Southern Aluminum Finishing Co. (In re Amarlite Architectural Prods., Inc.), 178 Bankr. 904 (Bankr. N.D. Ga. 1995).

A subcontractor that contracted with a construction company to supply labor and materials for the "rebranding" of service stations never had valid liens to release, cancel, or refrain from foreclosing upon; there was no evidence that the subcontractor furnished its work at the instance of the station owners or their agents, and the owners' knowledge of and consent to the work was not sufficient, standing alone, to establish the validity of the liens. Lane Supply, Inc. v. W. H. Ferguson & Sons, Inc., 286 Ga. App. 512, 649 S.E.2d 614 (2007).

O.C.G.A. § 44-14-361 is in derogation of the common law. Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 26 Bankr. 394 (Bankr. N.D. Ga. 1983).

Purpose of the materialman's lien statutes in every state is, in substance, the same: to give the furnisher of labor and material a claim upon the owner, to compel the owner at the owner's peril to withhold final payment until the owner has received assurance from the contractor that the owner has paid all material and labor claims, which are or which may be perfected into liens. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841 (1949); Scott v. Williams, 111 Ga. App. 735, 143 S.E.2d 16 (1965); Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

The object of O.C.G.A. § 44-14-361 is to secure a lien for that which goes into the structure. Skandia Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279, 277 S.E.2d 282 (1981).

The manifest purpose of O.C.G.A. § 44-14-361 is to make the property of the owner liable for material which entered into the construction of the improvement on the employment of a contractor, within the limits of the contract price, unless the materialman waives the lien or, upon the final payment of the contract price, takes from the contractor a sworn statement that all work done or material furnished has been paid for at the agreed price or reasonable value. Henderson v. Mitchell Eng'g Co., 158 Ga. App. 306, 279 S.E.2d 750 (1981).

O.C.G.A. § 44-14-361 is given a strict construction. Ingalls Iron Works Co. v. Standard Accident Ins. Co., 107 Ga. App. 454, 130 S.E.2d 606 (1963).

The lien statutes are in derogation of the common law, are to be strictly construed against the mechanic and materialmen, and will be extended no further than their words plainly import; the materialman has the burden of proving a lien and must be brought clearly within the law. 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).

The lien statutes are strictly construed, and strict compliance with them is required. Roberts v. Porter, Davis, Saunders & Churchill, 193 Ga. App. 898, 389 S.E.2d 361 (1989).

Mechanics' and materialmen's liens under O.C.G.A. § 44-14-361 are in derogation of common law and thus are to be strictly construed against the mechanic and materialman. L & W Supply Corp. v. Whaley Constr. Co., 197 Ga. App. 680, 399 S.E.2d 272 (1990).

The statutory bond requirement, on the other hand, is afforded a liberal interpretation for the protection of persons who supply labor and materials used in the prosecution of the general contract. 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).

The right to the lien under O.C.G.A. § 44-14-361 proceeds upon the theory that the work and material or machinery for which the lien is sought have increased the value of the realty by becoming a part thereof. Skandia Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279, 277 S.E.2d 282 (1981).

The lien is created and imposed by operation of law, while the bond is a matter of contract, albeit a contract required by the statute to be made in order to give validity to another. 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).

The lien on the property is the security for the laborer and the materialman, while under the bond statute, where no lien can be secured, the bond is the security. 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).

- Where a contractor abandoned the work against the will of the owner, the gross sum fixed as the price for completing the entire work is the true "contract price," and not the sum contemplated to be paid in the event the owner suspended the work at a period before completion. Hunnicutt & Bellingrath Co. v. Van Hoose, 111 Ga. 518, 36 S.E. 669 (1900).

- The expression "true owner" as used in O.C.G.A. § 44-14-361, does not mean legal title. Such a lien obtains on whatever interest the one has who has the right and authority to cause the improvements to be made. West Lumber Co. v. Gignilliat, 77 Ga. App. 336, 48 S.E.2d 688 (1948), later appeal, 80 Ga. App. 652, 56 S.E.2d 841 (1949).

The term "true owner" as used in O.C.G.A. § 44-14-361 includes one having an estate in realty, and the lien prescribed would attach to such an interest in realty. This interest in realty should be distinguished from the interest of one entitled only to the use and enjoyment of the premises, that is to say, one having only a usufruct. Jones v. E.I. Rooks & Son, 78 Ga. App. 790, 52 S.E.2d 580 (1949).

The words "true owner," are sufficiently comprehensive to embrace the owner of an equitable title to the real estate, and the liens therein provided for may attach to the equitable owner's interest. Maloy v. Planter's Whse. & Lumber Co., 142 Ga. App. 69, 234 S.E.2d 807 (1977).

The words "true owner," as used in O.C.G.A. § 44-14-361, are sufficiently comprehensive to include the owner of a leasehold estate. James G. Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co., 140 Ga. 593, 79 S.E. 465 (1913).

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 liens specified in O.C.G.A. § 44-14-361 are of the same character and governed by the same principles of law. Guaranty Inv. & Loan Co. v. Athens Eng'g Co., 152 Ga. 596, 110 S.E. 873 (1922).

- Where there is an entire contract and there is no lien for one part there can be no lien for any part. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68 (1967).

- An item which is not lienable cannot be made so by including it in a contract for work or items which are lienable. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68 (1967).

- If items lienable can be separated from those which are nonlienable on a foreclosure proceeding, the burden of doing so rests upon the lienholder. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68 (1967).

- 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).

- The fact that improvements became the landlord's property upon termination of the tenant's lease did not create a basis for imposing a lien against the landlord. The landlord's equitable interest in improvements is not subject to a lien. F.S. Assocs. v. McMichael's Constr. Co., 197 Ga. App. 705, 399 S.E.2d 479 (1990).

Public property is not subject to a lien under O.C.G.A. § 44-14-361. Neal-Millard Co. v. Trustees of Chatham Academy, 121 Ga. 208, 48 S.E. 978 (1904).

Where a supplier filed a materialman's lien against the Atlanta Housing Authority's property, this lien was of no legal effect, inasmuch as a lien cannot be effective against state property. B & B Elec. Supply Co. v. H.J. Russell Constr. Co., 166 Ga. App. 499, 304 S.E.2d 544 (1983).

- O.C.G.A. § 44-14-361 is applicable as against a corporation where the contract performance of which is claimed to give a lien was made with individuals who agreed to incorporate. Chicago Bldg. & Mfg. Co. v. Talbotton Creamery & Mfg. Co., 106 Ga. 84, 31 S.E. 809 (1898).

- O.C.G.A. § 44-14-361(b) does not apply to cases where the relationship of master and servant or principal and agent exists. Fitts v. Addis, 83 Ga. App. 696, 64 S.E.2d 466 (1951).

Where relationship of master and servant exists between an owner and builder, the master becomes liable for the acts of the servant as the master's agent within the scope of the master's employment, and therefore is subject to a personal judgment, and the master's property is subject to liens for the labor and materials which had been furnished to the master through such servant, and of which the master received the benefit. Christian v. Bremer, 199 Ga. 285, 34 S.E.2d 40 (1945).

- O.C.G.A. § 44-14-361 is designed to protect a property owner without notice, when the debtor did not contract directly with the lienor and the existence of a lien is not obvious, by providing that the lien in that situation will be effective only after filing for record. Marietta Baptist Tabernacle v. Tomberlin Assocs., 576 F.2d 1237 (5th Cir. 1978).

- O.C.G.A. § 44-14-361 was never intended, and does not purport, to cover a situation where a lessee under the terms of the lease has an option to erect a fence on the real estate, which the lessee may remove if the lessee and the lessor cannot agree on satisfactory terms for it to remain on the realty. Wall v. Mills, 126 Ga. App. 149, 190 S.E.2d 146 (1972).

- Under O.C.G.A. § 44-14-361.1, to make good the liens specified in O.C.G.A. § 44-14-361, not only must there be a substantial compliance by the alleged lienor with the contract, and the recording of the claim of lien within three months, but it is also essential to the creation of a lien that an action for the recovery of the amount of the claim be commenced within 12 months from the time the same became due. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935).

- 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).

- Under O.C.G.A. § 44-14-360 et seq., a lien attaches when a laborer performs work on real property. However, under O.C.G.A. § 44-14-361.1(a)(2) and (a)(3), it must be perfected within three months after either the completion of the work or the date materials are furnished and an action to recover the amount of the claim must be instituted within 12 months from the time labor or materials were last furnished. Thus, a lien is not civil process and plaintiffs do not state a claim upon which relief can be granted when they contend that the filing of a lien constitutes an abuse of process. Carl E. Jones Dev., Inc. v. Wilson, 149 Ga. App. 679, 255 S.E.2d 135 (1979).

- Where a statute creates a specific lien, in favor of masons and carpenters on buildings erected by them, and also gives them a specific remedy for the enforcement of such lien, a court of equity has no jurisdiction to enforce it, unless there is some impediment or difficulty charged to exist which would render the remedy given by O.C.G.A. § 44-14-361 unavailable. King v. Rutledge, 208 Ga. 172, 65 S.E.2d 801 (1951).

- Where the lien of a materialman has, under the terms of O.C.G.A. § 44-14-361, become fixed and secured, such lien is then a vested right. No subsequent repeal or modification of the statute under which it became fixed can destroy or modify such right. Waters v. Dixie Lumber & Mfg. Co., 106 Ga. 592, 32 S.E. 636, 71 Am. St. R. 281 (1899).

- O.C.G.A. §§ 44-14-361,44-14-380, and44-14-381, which give to laborers a general lien upon the property of their employers for labor performed, has no extraterritorial effect, and give no lien arising out of a contract for labor, made in another state and executed by labor performed therein. Downs v. Bedford, 39 Ga. App. 155, 146 S.E. 514 (1929).

Foreign judgment not sufficient until brought as action in this state. Columbian Iron Works v. Crystal Springs Bleachery Co., 145 Ga. 621, 89 S.E. 751 (1916).

Nonresidents of Georgia have the same remedies under O.C.G.A. § 44-14-361 as citizens. Thurman v. Kyle, 71 Ga. 628 (1883).

- Although a contract for furnishing materials in Georgia is made in another state, the Georgia law will apply as to the lien of the materialman. Thurman v. Kyle, 71 Ga. 628 (1883).

- The liens of laborers and materialmen do not rest upon contract, but upon the law which gives to laborers and materialmen liens for labor performed and material furnished in the improvement of real estate. Williams v. Brewton, 170 Ga. 164, 152 S.E. 441 (1930).

- Chapter 7 Trustee was not entitled to a default judgment on a complaint to avoid a contractor's mechanics' lien under 11 U.S.C. § 547 because the facts alleged in the complaint suggested that the contractor's lien may have fallen outside the purview of 11 U.S.C. § 545; by alleging that the contractor's lien was a mechanics' lien, the trustee established the lien's nonavoidability under 11 U.S.C. § 547(c)(6). Hays v. Wellborn Forest Prods. (In re Spejcher), Bankr. (Bankr. N.D. Ga. Oct. 30, 2006).

- 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).

- Although a contractor's claim for lost profits in the contractor's materialman's lien was invalid under O.C.G.A. § 44-14-361(c) and (e), because the lost profits amount was easily determined, the trial court erred by invalidating the entire lien, instead of amending the lien to exclude non-lienable amounts as permitted by O.C.G.A. § 44-14-361.1(a) and (a.1). Duke Builders, Inc. v. Massey, 351 Ga. App. 535, 831 S.E.2d 172 (2019).

- Georgia Supreme Court held that the Georgia Court of Appeals was correct to hold that a materialmen's lien may not include anticipated profits, and the Supreme Court affirmed that holding. Massey v. Duke Builders, Ga. , S.E.2d (Sept. 28, 2020).

Cited in Loudon v. Coleman, 62 Ga. 146 (1878); Royal v. McPhail, 97 Ga. 457, 25 S.E. 512 (1895); Logue v. Walker, 141 Ga. 644, 81 S.E. 849 (1914); Jones v. Traynham, 20 Ga. App. 349, 93 S.E. 154 (1917); Cox v. Seely, 20 Ga. App. 629, 93 S.E. 421 (1917); Koppe & Steinichen v. Rylander, 29 Ga. App. 41, 114 S.E. 81 (1922); Myrick v. Dixon, 37 Ga. App. 536, 140 S.E. 920 (1927); Davis-Washington Co. v. Vickers, 41 Ga. App. 818, 155 S.E. 92 (1930); Kreutz v. Dublin Sash & Door Co., 53 Ga. App. 50, 184 S.E. 908 (1936); Poythress v. Hucks, 56 Ga. App. 657, 193 S.E. 475 (1937); Davison v. F.W. Woolworth Co., 186 Ga. 663, 198 S.E. 738 (1938); Cutler-Hammer, Inc. v. Wayne, 101 F.2d 823 (5th Cir. 1939); East Atlanta Bank v. Limbert, 191 Ga. 486, 12 S.E.2d 865 (1940); Roberts v. Georgia S. Supply Co., 92 Ga. App. 303, 88 S.E.2d 554 (1955); Gilmore v. Royal Indem. Co., 240 F.2d 101 (5th Cir. 1956); Latham Plumbing & Heating Co. v. Ledbetter Trucks, Inc., 96 Ga. App. 219, 99 S.E.2d 545 (1957); Hill v. Dealers Supply Co., 103 Ga. App. 846, 120 S.E.2d 879 (1961); Builders Supply Co. v. Pilgrim, 115 Ga. App. 85, 153 S.E.2d 657 (1967); Levy v. G.E.C. Corp., 117 Ga. App. 673, 161 S.E.2d 339 (1968); Jordan Co. v. Bethlehem Steel Corp., 309 F. Supp. 148 (S.D. Ga. 1970); Butler v. Garrison, 123 Ga. App. 645, 182 S.E.2d 185 (1971); Quinn v. Rainwater, 124 Ga. App. 374, 183 S.E.2d 629 (1971); Phoenix Air Conditioning Co. v. Al-Carol, Inc., 129 Ga. App. 386, 199 S.E.2d 556 (1973); Ronfra Dev. Corp. v. Pennington, 131 Ga. App. 195, 205 S.E.2d 448 (1974); Centennial Equities Corp. v. Hollis, 132 Ga. App. 44, 207 S.E.2d 573 (1974); Lee v. Stokes, 135 Ga. App. 642, 218 S.E.2d 654 (1975); Jackson v. State, 137 Ga. App. 192, 223 S.E.2d 239 (1976); Melton v. Pacific S. Mtg. Trust, 144 Ga. App. 600, 241 S.E.2d 609 (1978); 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); Palmer v. Forrest, Mackey & Assocs., 251 Ga. 304, 304 S.E.2d 704 (1983); Chambless Ford Tractor, Inc. v. McGlaun Farms, Inc., 169 Ga. App. 672, 314 S.E.2d 689 (1984); Cumberland Bridge Assocs. v. Builders Steel Supply, Inc., 169 Ga. App. 945, 315 S.E.2d 484 (1984); Siplast, Inc. v. Inland Container Corp., 172 Ga. App. 341, 323 S.E.2d 187 (1984); Tonn & Blank, Inc. v. D.M. Asphalt, Inc., 187 Ga. App. 272, 370 S.E.2d 30 (1988); Schwan's Sales Enters., Inc. v. Martin Mechanical Contractors, Inc., 202 Ga. App. 510, 414 S.E.2d 727 (1992); Ragsdale v. Chiu (In re Harbor Club), 185 Bankr. 959 (Bankr. N.D. Ga. 1995); Warren v. State, 232 Ga. App. 488, 502 S.E.2d 336 (1998); Northside Wood Flooring, Inc. v. Borst, 232 Ga. App. 569, 502 S.E.2d 508 (1998).

Mechanics

Mechanic's lien strictly construed.

- The mechanic's lien, as to realty, is in derogation of common law, and is to be construed strictly and extended no further than its words plainly import. Fox v. Rucker, 30 Ga. 525 (1860); Tuck v. Moss Mfg. Co., 127 Ga. 729, 56 S.E. 1001 (1907); Oglethorpe Sav. & Trust Co. v. Morgan, 149 Ga. 787, 102 S.E. 528 (1920); Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61 (1941).

For a history of legislation on mechanic's liens, see Prince v. Neal-Millard Co., 124 Ga. 884, 53 S.E. 761, 4 Ann. Cas. 615 (1906).

- In the case of a mechanic, it is necessary that the mechanic should be an operative engaged in a business requiring some particular skill in doing the work by virtue of which the law creates in the mechanic's favor a lien. Dantel Corp. v. Whidby, 98 Ga. App. 119, 105 S.E.2d 242 (1958).

O.C.G.A. § 44-14-361 concerns itself with the taking of personal security for the property by a mechanic; it has been often held that the taking of such an arrangement by a materialman does not constitute a waiver of a valid lien given materialmen under that section. Henderson v. Mitchell Eng'g Co., 158 Ga. App. 306, 279 S.E.2d 750 (1981).

- A working foreman, who, in addition to the foreman's duties as a supervisor, is expected to perform manual type labor personally is not, in the main, a laborer so as to be entitled to a lien under O.C.G.A. § 44-14-380, but was a mechanic within the meaning of O.C.G.A. § 44-14-361. Dantel Corp. v. Whidby, 98 Ga. App. 119, 105 S.E.2d 242 (1958).

- One who occupies the position both of a contractor and of a mechanic, in either capacity, or in both, has a right to a lien, under O.C.G.A. § 44-14-361. Thurman v. Pettitt, 72 Ga. 38 (1883).

- Company admitted that the company held property interests in the improvements. Even if the company did not have title to the building on which the lien was claimed and title was in a third party not subject to the suit, this would not bar an action for foreclosing the statutory lien because if the company had any interest in the premises upon which the lien took effect, that interest was bound. Pinnacle Props. V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94, 735 S.E.2d 166 (2012).

- Under O.C.G.A. § 44-14-361 a mechanic is not entitled to a lien for work done on property belonging to a municipal corporation and used for public purposes. City of Albany v. Lynch, 119 Ga. 491, 46 S.E. 622 (1904).

Mechanics who have taken personal security thereby waive their right to a lien. Rembrant, Inc. v. Phillips Constr. Co., 500 F. Supp. 766 (S.D. Ga. 1980).

- A mechanic may institute an action for the enforcement of this lien against the specific property on which the lien attaches, and in the same action obtain a general judgment against the debtor for the same debt. Parish v. Murphy, 51 Ga. 614 (1874).

A mechanic may in a proper case, seek a judgment for the recovery of a debt for labor and materials furnished in improving property, and simultaneously seek the declaration of a special lien on the improved property. Rogers v. Johnson, 116 Ga. App. 295, 157 S.E.2d 48 (1967).

- Chapter 7 trustee's right to avoid a 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 the duties as trustee had the trustee consented to any work being done by the transferee on the property, which was required for the lien to attach. Scarver v. Ellis (In re McKeever), 567 Bankr. 652 (Bankr. N.D. Ga. 2017).

Exception to the automatic stay pursuant to 11 U.S.C. § 362(b)(3) did not apply to a post-petition mechanic's lien because the lien was not properly perfected and enforceable as the Chapter 7 trustee did not authorize any of the work listed in the lien. Scarver v. Ellis (In re McKeever), 567 Bankr. 652 (Bankr. N.D. Ga. 2017).

Contractors and Subcontractors

Definition of "contractor."

- As used in O.C.G.A. § 44-14-361, the word "contractor" is not to be construed in its technical sense, which would embrace any person who had any contract of any character, but is to be given its limited, colloquial sense, meaning a person engaged in the business of making contracts for the improvement of real estate. Pittsburgh Plate Glass Co. v. Peters Land Co., 123 Ga. 723, 51 S.E. 725 (1905); Central of Ga. Ry. v. Shiver, 125 Ga. 218, 53 S.E. 610 (1906); Murphy v. Fuller, 96 Ga. App. 403, 100 S.E.2d 137 (1957).

Tenant does not come within the meaning of the phrase "contractor, or some other person," in O.C.G.A. § 44-14-361. Central of Ga. Ry. v. Shiver, 125 Ga. 218, 53 S.E. 610 (1906).

- In a breach of contract action associated with a construction project, the trial court properly granted a limited liability company's motion for a directed verdict against a contractor, as the contractor failed to present sufficient evidence linking the limited liability company to the contract sued upon, but all the evidence involved the contractor's negotiations and dealings with a businessperson and that company; further, the appeals court found that a stipulation between the parties referred only to the notice requirement of the lien statute, O.C.G.A. § 44-14-361.1(a), and instead declined to stretch the wording in the stipulation to mean more than what the parties clearly intended. L. Lowe & Co., Inc. v. Sunset Strip Props., LLC, 283 Ga. App. 357, 641 S.E.2d 797 (2007).

- O.C.G.A. § 44-14-361 does not impose a duty or independent obligation on a general contractor to satisfy lien rights held by a materialman. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

- The existence of such inchoate rights, when coupled with the general contractor's obligations, predicated in part upon potential criminal, if not civil liability, compel the finding that a general contractor may seek to expedite own payment and foreclose any necessity on the part of materialmen to enforce their lien rights by agreeing to discharge those rights by direct payment. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

- A contractor cannot recover a judgment against the owner in the face of undisputed evidence that the contractor has not paid a materialman who has foreclosed a lien on the owner's premises in an amount greater than that remaining due by the owner to the contractor. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

- Absence of contractual liability of owners due to their absence as parties to the subcontract does not prevent the establishment of a lien by a subcontractor under O.C.G.A. § 44-14-361. Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974).

O.C.G.A. § 44-14-361 does not exclude a subcontractor from claiming a lien; rather, it limits the entities to which the owner of the real property may turn to establish as a defense that the agreed price or reasonable value thereof has been paid. Spicewood, Inc. v. Ferro Pipeline Co., 181 Ga. App. 277, 351 S.E.2d 711 (1986).

- It is the owner's responsibility to see to it that the payments which the owner makes on the construction contract price are properly disbursed by the contractor to those having valid claims for labor and materials. Henderson v. Mitchell Eng'g Co., 158 Ga. App. 306, 279 S.E.2d 750 (1981).

- Payments by the owner to the contractor do not affect the liens of subcontractors or materialmen unless made in accordance with O.C.G.A. § 44-14-361 or actually applied to the claims of the materialmen. Prince v. Neal-Millard Co., 124 Ga. 884, 53 S.E. 761, 4 Ann. Cas. 615 (1906); Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210 (1914), writ dismissed, 241 U.S. 687, 36 S. Ct. 451, 60 L. Ed. 1237 (1916).

- Subcontractor's lien filed before a lender's security deed was superior to the deed, pursuant to O.C.G.A. § 44-2-2(b). The general contractor's affidavit that the subcontractors had been or will be paid was insufficient to satisfy the plain language of O.C.G.A. § 44-14-361.2(a), requiring a statement that payment had been made, and did not extinguish the lien. Ga. Primary Bank v. Atlanta Paving, Inc., 309 Ga. App. 851, 711 S.E.2d 409 (2011).

- Where the owner notifies a subcontractor of an intended payment to the contractor and no objection is made, the subcontractor will be estopped to the extent of such payment. Bailie v. Woodward Lumber Co., 141 Ga. 806, 82 S.E. 232 (1914).

- A subcontractor has no lien where no sum is due the original contractor because of the subcontractor's wrongful abandonment of the contractor. Rowell v. Harris, 121 Ga. 239, 48 S.E. 948 (1904).

- Absent proof of a contractual relationship, either directly or through a chain of contracts, between the owner of the property and the person to whom the materials are furnished, a lien created under O.C.G.A. § 44-14-361 will not attach. Benning Constr. Co. v. Dykes Paving & Constr. Co., Inc., 263 Ga. 16, 426 S.E.2d 564 (1993).

Lien upon railroad is upon the whole railroad to which it applies. There is no provision of law allowing a contractor to set up and enforce a lien upon a part of any railroad, though such part may be all of the road which the contractor constructed or aided to construct. Farmers' Loan & Trust Co. v. Candler, 87 Ga. 241, 13 S.E. 560 (1891).

Contractor building a railroad has no equitable lien independent of O.C.G.A. § 44-14-361. Farmers' Loan & Trust Co. v. Candler, 92 Ga. 249, 18 S.E. 540 (1893).

- The lien given by O.C.G.A. § 44-14-361 to "contractors to build railroads" is confined to those contractors employed by the person or company owning the railroad, and the right of lien does not extend to subcontractors. Carter v. Rome & Carrollton Constr. Co., 89 Ga. 158, 15 S.E. 36 (1892).

- The general contractor is an interested witness. If the contractor receives the full contract price for the job the contractor becomes a trustee of the funds for the purpose of disbursing them properly to those who hold valid claims for labor and materials, and the contractor's failure faithfully to do so would render the contractor criminally liable. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

- 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).

- 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).

Lien given to materialmen is purely statutory, and does not depend upon subrogation, except to the extent that the total amount paid out may not exceed the contract price. Roberts v. Georgia S. Supply Co., 92 Ga. App. 303, 88 S.E.2d 554 (1955).

- O.C.G.A. §§ 44-14-361 and44-14-361.1 provide a method of effecting a lien for materials furnished for the purpose of improving real estate, and strict compliance with these sections is required. King v. Rutledge, 208 Ga. 172, 65 S.E.2d 801 (1951).

- O.C.G.A. § 44-14-361 gives to one furnishing material for the improvement of real estate upon the employment of a contractor, or some other person than the owner, a lien upon the real estate improved for the material used in the improvement. Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602 (1930).

O.C.G.A. § 44-14-361 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. 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).

Materialmen must establish that the materials furnished actually were used in the improvement itself for the benefit of the owner of the realty. Taverrite v. Lowe's of Franklin, Inc., 166 Ga. App. 346, 304 S.E.2d 78 (1983).

The inclusion of nonlienable items, easily separable from lienable items, does not defeat the entire lien. Taverrite v. Lowe's of Franklin, Inc., 166 Ga. App. 346, 304 S.E.2d 78 (1983).

- The remedies afforded a particular materialman under (1) the lien statute, (2) the bond statute for public contractors, and (3) the contractual rights appurtenant to a private payment bond, are distinct and separate, and, even though certain terminology may overlap, the judicial construction of that terminology is not uniform for all remedies. 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).

- 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).

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).

- O.C.G.A. § 44-14-361 has been construed to mean that the material so furnished must be under contract with a contractor or with some person occupying a similar relation to the owner as that of contractor. Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602 (1930).

Mere knowledge that improvements are to be made will not subject the title of the true owner to a lien for material. Bryant v. Ellenburg, 106 Ga. App. 510, 127 S.E.2d 468 (1962).

- There need not be a contract between the materialman and the true owner, but there must be a contract for material with a person who has contracted with the true owner for the erection of the improvements. Marshall v. Peacock, 205 Ga. 891, 55 S.E.2d 354 (1949).

Contract necessary to fix liability of owner and establish a privity between the owner and the materialman. Marshall v. Peacock, 205 Ga. 891, 55 S.E.2d 354 (1949).

- The lien of a materialman is not affected by any private arrangement between the property owner and the contractor. Tuck v. Moss Mfg. Co., 127 Ga. 729, 56 S.E. 1001 (1907).

- O.C.G.A. § 44-14-361 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).

O.C.G.A. § 44-14-361 does not, by its terms, permit a materialman's lien for the cost of repairs. 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).

- 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. § 44-14-361. 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).

A supplier to a supplier is not entitled to claim a lien under O.C.G.A. § 44-14-361. Porter Coatings v. Stein Steel & Supply Co., 157 Ga. App. 260, 277 S.E.2d 272, aff'd, 247 Ga. 631, 278 S.E.2d 377 (1981).

- A materialman furnishing material for the improvement of real estate to a subcontractor who has no contractual relation with the owners of such realty does not thereby acquire a lien upon the property so improved. General Supply Co. v. Hunn, 126 Ga. 615, 55 S.E. 957 (1906); George W. Muller Bank Fixture Co. v. Georgia State Sav. Ass'n, 143 Ga. 840, 85 S.E. 1018 (1915).

- A finding that the realty ought not be charged with a debt for the reason that the realty as finally improved does not contain the material furnished is not a finding that the debt is not owing and may go unpaid. The debt itself does not depend upon the nicety of whether the material was or was not finally incorporated into the improvement. The debt exists if materials were furnished and not paid for. United Bonding Ins. Co. v. Good-Wynn Elec. Supply Co., 124 Ga. App. 545, 184 S.E.2d 508 (1971).

Georgia law recognizes the constructive trust fund doctrine with respect to payments owed materialmen by their contractors for improvements made to a third party's realty. Bethlehem Steel Corp. v. Tidwell, 66 Bankr. 932 (M.D. Ga. 1986).

Constructive trust in favor of a materialman does not automatically exist as a result of O.C.G.A. § 44-14-361 with regard to funds transferred by a payor to a construction contractor/debtor. In re Sun Belt Elec. Constructors, Inc., 56 Bankr. 686 (Bankr. N.D. Ga. 1986).

Materialmen having a beneficial interest in a contractor's bond may bring an action on the bond in their own name rather than in the name of the nominal obligee. 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).

- If the general contractor's payment bond defines a claimant under the bond as one supplying material to a subcontractor, then a materialman of a subcontractor may bring an action on the bond for the subcontractor's nonpayment; if the bond expressly limits a right of action on the bond to the named obligees or is conditioned on the general contractor's payment of only those materialmen having a direct relationship with the general contractor, then a materialman of a subcontractor may not bring action on the payment bond; and if the bond is conditioned on the general contractor's payment of all persons furnishing labor and material under or for the contract, then, at a minimum, materialmen of the general contractor may maintain an action on the 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).

- A materialman is not required to show that the materials for which the materialman claims a lien were actually used on the job of the owner against whose interest the materialman is asserting the lien. It is the general rule that there is a presumption of the use of materials in a building or improvement arising from the fact of their delivery thereto for that purpose, and the burden is then on the property owner to prove that the material was not so used. Maloy v. Planter's Whse. & Lumber Co., 142 Ga. App. 69, 234 S.E.2d 807 (1977).

- Where there is a single contract for improvements on separate pieces of property the lien for materials furnished attaches to each piece of property. Lyon v. Cedartown Lumber Co., 13 Ga. App. 450, 79 S.E. 236 (1913).

- To entitle a materialman to a single lien on several houses, being simultaneously built under one operation, for material furnished generally for them all, and to be used indiscriminately among them as needed, it is not necessary for such materialmen to prove just what material went into any particular house, provided it is shown that the material was delivered under such order. Christian v. Bremer, 199 Ga. 285, 34 S.E.2d 40 (1945).

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).

- The liens of laborers and materialmen do not rest upon contract but upon the law, and the title of the true owner cannot be subjected to liens for materials or labor done in its improvement unless the owner expressly or impliedly consents to the contract under which the improvements are made. However, when the vendor has in some way consented to the improvements of real estate by the vendee, or has expressly or impliedly authorized it, or has cooperated with the vendee in the plans for the improvements, or has been active and instrumental in having the improvements made, such liens will attach to the property. West Lumber Co. v. Gignilliat, 77 Ga. App. 336, 48 S.E.2d 688 (1948), later appeal, 80 Ga. App. 652, 56 S.E.2d 841 (1949).

A vendor of real estate, who induces one who has a contract to purchase land, to expend labor and material in improving the land, cannot defeat the claims for liens by those who contribute their labor and material to enhance the value of the property. In such a case, in the absence of a controlling agreement, the vendor cannot insist that the mechanic's lien shall be subordinated to the vendor's title or interest in the realty. Williams v. Brewton, 170 Ga. 164, 152 S.E. 441 (1930).

- Where a vendor improves real estate and the vendee, under a contract to purchase, consents to and cooperates in the improving of the property subsequently to the executory contract of sale, the lien of a materialman for materials furnished to the vendor for the improvement of the property, properly prepared and recorded and foreclosed in time, binds the interests of both vendor and vendee in the property even though the vendee receives a deed to the property and records it before the materialman's lien is filed for record and recorded. West Lumber Co. v. Gignilliat, 77 Ga. App. 336, 48 S.E.2d 688 (1948), later appeal, 80 Ga. App. 652, 56 S.E.2d 841 (1949).

O.C.G.A. § 44-14-361 does not operate in favor of contractor paving a sidewalk in a street adjacent to a lot. Seeman v. Schultze, 100 Ga. 603, 28 S.E. 378 (1897).

Contractor's lien attaches from time work is commenced or material is furnished under the contract. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686, 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345, 236 S.E.2d 592 (1977).

- The lien of a materialman on real estate, arising under O.C.G.A. §§ 44-14-361 and44-14-380, attaches from the time the work under the contract is commenced or the material is furnished. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65 (1947).

The lien of a materialman upon property, for the improvement of which the material was furnished, as provided in O.C.G.A. §§ 44-14-361 and44-14-361.1, attaches when the material is furnished in accordance with the contract. This is true notwithstanding the lien may become divested in favor of a bona fide purchaser of the property without notice of the lien. Davis v. Stone, 48 Ga. App. 532, 173 S.E. 454 (1934).

- Liens under O.C.G.A. § 44-14-361 relate back to the time the work under the contract commenced, provided that the lien is properly perfected. Marietta Baptist Tabernacle v. Tomberlin Assocs., 576 F.2d 1237 (5th Cir. 1978).

- A materialman's lien rights attach following the first delivery of materials to be used on a job and expire 90 days following the date of the last delivery. Assuming the last item delivered is a lienable item, then the subsequently perfected lien relates back to cover all items delivered, including those items delivered more than 90 days prior to filing the lien. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

- Prior to payment, and notwithstanding the intervening bankruptcy of the subcontractor, a materialman may enforce inchoate lien rights against the owner. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

- Subcontractor's O.C.G.A. § 44-14-361 special lien was void because the subcontractor failed to comply with the perfection requirements in O.C.G.A. § 44-14-361.5(a), (c); the fact that the general contractor on a construction project had failed to post a notice of commencement at the construction site did not absolve the subcontractor from complying with the perfection requirements. Rey Coliman Contrs., Inc. v. PCL Constr. Servs., 296 Ga. App. 892, 676 S.E.2d 298 (2009).

- Contractor's estimated lost profits were not lienable because lost profits did not relate to work performed, or any value added, to the client's property. Duke Builders, Inc. v. Massey, 351 Ga. App. 535, 831 S.E.2d 172 (2019).

- Trial court did not err in refusing to give a jury instruction on privileged communications under O.C.G.A. § 51-5-7(3), where the materialman's lien claimant's claim of lien was not properly limited in scope; the lien claimant's lien was almost eight times the amount the claimant supplied in labor and materials for improvement of the property. Amador v. Thomas, 259 Ga. App. 835, 578 S.E.2d 537 (2003).

Machinists and Manufacturers of Machinery

Machinery which cannot be basis of lien.

- The general rule is that machinery not totally depreciated by use on the property or 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).

Equipment or machinery rented or leased to contractors to perform their work nonlienable. Mableton Erectors, Inc. v. Dunn Properties of Ga., Inc., 135 Ga. App. 504, 218 S.E.2d 175 (1975).

- 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).

- 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. § 44-14-361 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 company's scaffolding not lienable. 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. § 44-14-361 and not O.C.G.A. § 44-14-515. Filer & Stowell Co. v. Empire Lumber Co., 91 Ga. 657, 18 S.E. 359 (1893).

Priority of Liens

To be superior to other liens, lienholder must comply with every condition.

- O.C.G.A. § 44-14-361 is in derogation of the common law, and must be construed strictly. Before the lien which it creates in favor of certain persons, under certain circumstances, which overrides all other liens, can be allowed, the party must show compliance with all the conditions, and be personally brought within all the requirements and limitations of the statute. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935).

There is a presumption of no notice to the grantee in a warranty deed, security deed or even a quitclaim deed. Bryant v. Ellenburg, 106 Ga. App. 510, 127 S.E.2d 468 (1962).

- The bona fide holder of a security deed executed before the first material was furnished, and therefore necessarily prior to the record of the materialman's claim of lien, will take priority over the materialman's claim of lien, although the security deed was itself not recorded until after the first material was furnished. The rule would be different where the holder of the security deed had actual notice of the furnishing of the material prior to the execution of the deed; and might be different where the holder of the security deed had such actual notice prior to the record of the security deed. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619 (1942).

An architect's lien attaches from the time the first work is done or the first material provided. Murray v. Chulak, 250 Ga. 765, 300 S.E.2d 493 (1983).

- Grantee in a deed may lose priority over a materialman's lien where the grantee: has actual notice of the claim of lien, has constructive notice because the lien has been previously recorded, has consented to the making of the improvement either expressly or impliedly, or has misled the materialman as to the ownership of the property, giving rise to an estoppel. Bryant v. Ellenburg, 106 Ga. App. 510, 127 S.E.2d 468 (1962).

- The lien of a contractor on real estate improved under a contract with the owner thereof, as provided by law, if and when created and declared as required by law, attaches from the time the work under the contract is commenced, and will take priority over the title acquired after the commencing of work by the contractor and with actual notice of the contractor's claim by a grantee of a deed to secure debt from the owner of the real estate although the deed to secure debt was executed and recorded before the completion of the contract and before the claim of lien was formally filed of record. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800 (1978).

- A contractor's lien attaches from the time the work under the contract is commenced, although it lacks, certainly until it is recorded, the quality of constructive notice, but one who takes a deed to the property or purchases it while work is in progress, with knowledge of the contract and notice of the contractor's claim of lien, though imperfect or unrecorded at that time, must be held to take the property subject to the lien, provided that the contract is completed and the lien is declared and enforced within the time prescribed by Georgia law. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800 (1978).

- The title of the true owner of land cannot be subjected to a lien for improvements, unless the owner expressly or impliedly assents to the contract under which the improvements are made. The grantee in a security deed is the true owner of the legal title. Where such deed is duly recorded before improvements are made, the purchaser at a foreclosure sale under the security deed holds title free from any lien for improvements placed upon the land subsequent to the execution and record of the security deed. Rutland Contracting Co. v. Gay Estate, 193 Ga. 468, 18 S.E.2d 835 (1942).

Where security deed is executed before delivery of any material, and therefore necessarily before the record of the materialmen's claim of lien, no question of notice to the grantee as to the materialmen's claims of lien at the time the security deed was executed would be involved. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619 (1942).

- A materialman's lien will prevail over that of a vendor, and attaches to the property improved, if the contract of sale provided that the vendor should go on and build upon the premises. Williams v. Brewton, 170 Ga. 164, 152 S.E. 441 (1930).

- Where defendant did not own the property at the time the defendant's architect commenced work and defendant was seeking to acquire the property from the property's owner and was not acting as agent for the property's owner, the architect's lien dated only from the time the defendant later acquired an interest in the property. Murray v. Chulak, 250 Ga. 765, 300 S.E.2d 493 (1983).

A purchase money security deed or mortgage had priority over an architect's liens against the purchaser of the property where the purchaser had simultaneously executed a security deed or mortgage for the purchase money and the provider of the purchase money did not have knowledge of the architect's lien. Murray v. Chulak, 250 Ga. 765, 300 S.E.2d 493 (1983).

O.C.G.A. § 44-14-361 does not require filing of notice at time of commencement of action against the owner. D & T Glass, Inc. v. Barrow Enters., Inc., 172 Ga. App. 797, 325 S.E.2d 170 (1984).

- Georgia Supreme Court held that the Georgia Court of Appeals properly held that amendment of a materialmen's lien was authorized by O.C.G.A. § 44-14-361.1(a.1) and that the lien amount may be reduced at any time. Massey v. Duke Builders, Ga. , S.E.2d (Sept. 28, 2020).

- A lien given by O.C.G.A. § 44-14-361 attaches to the real estate improved but the owner is not required to pay more than the contract price of the improvement to materialmen and laborers. Thompson v. Brannen Bldg. Supply, 153 Ga. App. 4, 264 S.E.2d 498 (1980).

- Where an owner of real estate, upon which improvements have been erected by a contractor, has paid the full contract price to the contractor, and the contractor has applied the whole amount so received by the contractor to the payment of valid claims for material and labor employed in constructing the improvements, the owner will be protected against claims of lien for material furnished to the contractor, filed subsequently to payment and application of the full contract price as above indicated. Jones Brick Co. v. Seagler Bros., 146 Ga. 19, 90 S.E. 473 (1916).

- The owner is protected as against claims for liens which may have been filed and recorded subsequent to the full payment and proper disbursement of the contract price. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782 (1969).

- Where a contractor abandons the contract without paying the materialman, who then files lien against owner for materials furnished the contractor and the owner, in order to obtain its completion engages others to furnish material and labor, the cost of completion may be applied by the owner, up to the contract price, as against the lien. Roberts v. Georgia S. Supply Co., 92 Ga. App. 303, 88 S.E.2d 554 (1955).

- 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. Young v. Harley-Mitchell Hdwe. Co., 173 Ga. 35, 159 S.E. 567 (1931); Wooten v. Ford, 46 Ga. App. 50, 166 S.E. 449 (1932).

- Under O.C.G.A. § 44-14-361, the owner is in no event liable for an amount in excess of the contract price, and if the contractor abandons the contract, the owner may have it completed and charge the necessary cost of completion against the contract price, before being liable either to the contractor or to the materialman. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65 (1947).

- Where a contractor abandons the contract, the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens. If such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then the subcontractors, mechanics, and materialmen have no lien, since there is nothing due under the contract. The owner is 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. Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812, 267 S.E.2d 251 (1980); Thompson v. Brannen Bldg. Supply, 153 Ga. App. 4, 264 S.E.2d 498 (1980).

Where owner contracts to pay by installments the owner does so at the owner's own risk as to claims of subcontractors. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210 (1914), writ dismissed, 241 U.S. 687, 36 S. Ct. 451, 60 L. Ed. 1237 (1916).

- Where the owner receives and uses the materials furnished by a subcontractor and has paid the contractor more than the amount claimed by the materialman, the owner is estopped to deny that the materialman had performed the contract. Koppe & Steinichen v. Rylander, 33 Ga. App. 686, 128 S.E. 68 (1925), aff'd, 162 Ga. 300, 133 S.E. 236 (1926).

- Where materials are furnished on representation of the owner of real estate that it is to be used in building thereon, the owner is estopped from setting up that some of it was not so used. Howell v. Cordray, 22 Ga. App. 195, 95 S.E. 762 (1918).

- The title of the true owner of land cannot be subjected to a lien for material or labor done in its improvement unless the owner expressly or impliedly consents to the contract under which the improvements are made. Reppard, Snedeker & Co. v. Morrison, 120 Ga. 28, 47 S.E. 554 (1904); Williams v. Brewton, 170 Ga. 164, 152 S.E. 441 (1930).

- The purpose of O.C.G.A. § 44-14-361 is to charge the owner of real estate with a lien for material furnished only when there was a specific contract for the improvements made, either made by the owner or assented to by the owner. Marshall v. Peacock, 205 Ga. 891, 55 S.E.2d 354 (1949).

- O.C.G.A. § 44-14-361 is dependent upon consent of the true owner, and subsection (b) is predicated upon the existence of authority from the owner to the contractor or other person to have the improvement made. This is shown by the provision therein that in no event shall the aggregate of liens exceed the contract price. Where a stranger to title or other person contracts or employs a third person to make improvements, the owner of the land is not bound to disclose to such third person the fact of ownership, and such third person has no lien on the land. Rutland Contracting Co. v. Gay Estate, 193 Ga. 468, 18 S.E.2d 835 (1942).

- Where there is an absence of a showing of a contractual relationship between the owner and the person to whom the materials were furnished, no enforceable lien is created against the owner's property. Liggett v. Harper, 151 Ga. App. 616, 260 S.E.2d 735 (1979).

- A stranger may not order work done upon real estate and thus charge the true owner. Neither may a tenant, unless there is some relation existing between the tenant and the landlord other than that of lessor and lessee. Marshall v. Peacock, 205 Ga. 891, 55 S.E.2d 354 (1949).

- One who furnishes material for the improvement of real estate, upon the employment of a contractor whose contract for the improvement is with a lessee, and who sustains no contractual relation with the owner of the fee, is not entitled to a lien as against such owner of the premises under the provisions of O.C.G.A. § 44-14-361. Reppard, Snedeker & Co. v. Morrison, 120 Ga. 28, 47 S.E. 554 (1904); Pittsburgh Plate Glass Co. v. Peters Land Co., 123 Ga. 723, 51 S.E. 725 (1905); Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602 (1930).

Lessee cannot bind the owner even where the owner authorized the improvement, nor where the owner reimbursed the lessee, nor where the lessor owns a majority of the stock of the lessee. Central of Ga. Ry. v. Shiver, 125 Ga. 218, 53 S.E. 610 (1906); Consolidated Lumber Co. v. Ocean S.S. Co., 142 Ga. 186, 82 S.E. 532 (1914).

Where the lessee is acting on own behalf alone in contracting to have the improvements made, the lessee is not the agent of the lessor in that transaction. If there is no contractual relation between the contractor and the lessor as to the making of the repairs, there is no materialman's lien. Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602 (1930).

A contract for improvements between a lessee and a materialman does not subject the interest of the lessor to a lien unless a contractual relationship exists between the lessor and the materialman as well. Accurate Constr. Co. v. Dobbs Houses, Inc., 154 Ga. App. 605, 269 S.E.2d 494 (1980).

A tenant cannot order work done upon the demised premises and charge the owner with the cost, unless there is some relation existing between the tenant and the landlord other than that of lessor and lessee, by virtue of which the landlord expressly or impliedly consents to the contract under which the improvements are made. Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602 (1930).

Where a lessee contracted to make improvements to leased property and was obligated by the terms of the lease to be solely responsible for the costs thereof, a subcontractor had no right to impose a lien against the owner's reversionary interest in the property based on unpaid labor and materials because the lessee was not acting as an agent for the owner pursuant to O.C.G.A. § 44-14-361(b). Worley v. Cowper Constr. Co., 259 Ga. App. 263, 576 S.E.2d 645 (2003).

- The mere knowledge of the landlord that the improvements are being made by the tenant is insufficient to charge the landlord or the landlord's premises with their cost. The landlord must either expressly or impliedly authorize the tenant to make the improvements for the former's benefit. Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602 (1930).

Mere knowledge by lessor of improvements does not give rise to lien. Accurate Constr. Co. v. Dobbs Houses, Inc., 154 Ga. App. 605, 269 S.E.2d 494 (1980).

Materialman's lien was enforceable against the landlord if the amount due under the lien was payable by the landlord to the tenant under the tenant improvement allowance in the lease. Corley Communications, Inc. v. Northwinds Ctr., L.P., 250 Ga. App. 775, 552 S.E.2d 131 (2001).

- Where there was no evidence showing that the owner had expressly or impliedly consented to the improvements made on its property, the superior court did not err in granting summary judgment to the owner. Anatek, Inc. v. CSX Realty Dev., L.L.C., 243 Ga. App. 552, 532 S.E.2d 115 (2000).

- The rule of actual notice of claim of lien does not apply except as to those who do not consent to or cooperate in the making of improvements. The law charges with notice those who consent or cooperate. West Lumber Co. v. Gignilliat, 77 Ga. App. 336, 48 S.E.2d 688 (1948), later appeal, 80 Ga. App. 652, 56 S.E.2d 841 (1949).

- Where a landlord approved a construction contract only to the extent of the $59,400 allowance for improvements it granted to the tenant, the tenant became the agent of the landlord for up to $59,400 in contract costs. However, although the landlord consented to improvements made in excess of the allowance, it could not be said that the landlord became a party to the contract for any improvements exceeding that amount. Thus, it could not be said that these additional improvements were furnished at the instance of the owner or some person acting for the owner. F.S. Assocs. v. McMichael's Constr. Co., 197 Ga. App. 705, 399 S.E.2d 479 (1990).

- The true owner, though cognizant that a stranger to the title is having improvements made on the premises, is under no legal duty to give to a materialman any information touching the ownership of the property; and the owner will not be estopped from setting up title thereto, as against a materialman, when nothing has been done by anyone to mislead the materialman as to the ownership of the premises improved. Rice v. Warren, 91 Ga. 759, 17 S.E. 1032 (1893); Reaves v. Meredeth, 123 Ga. 444, 51 S.E. 391 (1905); Bryant v. Ellenburg, 106 Ga. App. 510, 127 S.E.2d 468 (1962).

- In some instances a true owner may be bound where improvements are made on the owner's property if the owner consents to the contract under which the improvements are made; still, before the owner can ratify the acts of the party who procured the improvements to be made, that party must have acted as or attempted to act as agent of and on the behalf of the owner. Morgan v. May Realty Co., 86 Ga. App. 261, 71 S.E.2d 438 (1952).

O.C.G.A. § 44-14-361 applies only so long as relation of owner and contractor continues. The contractor cannot bind the owner by ordering additional materials after the relation has ceased to exist. Sheehan v. South River Brick Co., 111 Ga. 444, 36 S.E. 759 (1900).

- An owner's mere payment of the full contract price to the contractor, standing alone, is not and has never been a complete defense to foreclosure of a materialman's lien. An owner must not only show that full payment was actually made to the contractor, but also 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. D & N Elec., Inc. v. Underground Festival, Inc., 202 Ga. App. 435, 414 S.E.2d 891 (1991).

- If a claim of lien has been filed and recorded, it is incumbent upon the owner of the improved real estate to see that payments to the contractor are, to the full amount of the contract price, appropriated to the materialmen and laborers. Thompson v. Brannen Bldg. Supply, 153 Ga. App. 4, 264 S.E.2d 498 (1980).

- Under O.C.G.A. § 44-14-361 the owner who pays the contractor must see to it that subcontractors having liens are satisfied, even though the liens have not been filed at the time of the payment. Green v. Farrar Lumber Co., 119 Ga. 30, 46 S.E. 62 (1903).

Only one affidavit by a contractor is contemplated by O.C.G.A. § 44-14-361. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782 (1969).

- The affidavit of the general contractor contemplated by O.C.G.A. § 44-14-361 requires the statement by the contractor that the agreed price has been paid; and it must appear that the owner has fulfilled the duty placed upon the owner by law by requiring the full contract price to be appropriated to materialmen and laborers to the extent of their claims. Whatley v. Alto Corp., 211 Ga. 718, 88 S.E.2d 398 (1955).

- The "agreed price or reasonable value thereof" refers not to the contract price between the owner and the contractor for completing the improvement, but to the price agreed upon between the contractor and the supplier of labor, services, or materials, or the value of those. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782 (1969).

Sworn statement is a single statement made after completion of work and before final settlement. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210 (1914). See also Waldon v. Maryland Cas. Co., 155 Ga. 76, 116 S.E. 838 (1923); Bankston v. Smith, 134 Ga. App. 882, 216 S.E.2d 634 (1975), rev'd on other grounds, 236 Ga. 92, 222 S.E.2d 375 (1976).

- The protective affidavit under O.C.G.A. § 44-14-361 relates to the improvement of real estate, and is not for application in respect to a lien on personal property. Gibbs v. Griffin, 123 Ga. App. 385, 181 S.E.2d 285 (1971).

- Where the affidavit provided for in O.C.G.A. § 44-14-361(b) is offered in evidence, and it appears that the contractor is a corporation, such affidavit need not contain a sworn averment that the person executing the affidavit is the president of such corporation. It is sufficient if such affidavit was in fact executed by the president as a personal affidavit, and such affidavit should be admitted in evidence. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841 (1949) (decided prior to 1983 amendment).

- If the owner has paid the full construction contract price the owner should have ample evidence of that and the owner would not need the contractor's affidavit as to it to comply with O.C.G.A. § 44-14-361; what the owner does need from the contractor is an affidavit as to the contractor's payment of the price or value of labor, services, and materials, which is something about which the owner may hold no other evidence of payment. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782 (1969); Certified Elec., Inc. v. Jerome, 161 Ga. App. 456, 288 S.E.2d 359 (1982).

- Where proof of a proper affidavit under O.C.G.A. § 44-14-361(b) is made, it is not incumbent upon defendant to produce, in addition to the contractor's sworn affidavit, evidence that the owner made full payment to the contractor and that the contractor in turn properly disbursed payment to all valid claims of materialman. Lowe's of Ga., Inc. v. Merwin, 156 Ga. App. 876, 275 S.E.2d 812 (1981) (decided prior to 1983 amendment, which rewrote subsection (b)).

- There is no provision of law for one who improves real estate while the legal title or its equivalent is in that person, to relieve another from a lien on the property by the making of an affidavit as is authorized under O.C.G.A. § 44-14-361. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686, 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345, 236 S.E.2d 592 (1977) (decided prior to 1983 amendment, which rewrote subsection (b)).

- In the absence of any evidence indicating that the owner was aware of the irregularity, or allegations and proof of fraud or collusion, the owner is not required to make an independent investigation to determine that the proper procedures were followed in the execution of the affidavit. Jackson's Atlanta Ready Mix Concrete Co. v. Industrial Tractor Parts Co., 139 Ga. App. 422, 228 S.E.2d 324 (1976) (decided prior to 1983 amendment, which rewrote subsection (b)).

- Under O.C.G.A. § 44-14-361(b), when the owner produces the affidavit of the contractor in compliance with that section, stating that all bills for labor and material have been paid, the materialman's claim against the owner by command of the statute cannot be perfected into a lien upon the property of the owner. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841 (1949); Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782 (1969) (decided prior to 1983 amendment, which rewrote subsection (b)).

- The liens provided for in O.C.G.A. § 44-14-361 are dissolved where the owner produces a sworn statement of the contractor, or other person, at whose instance the work was done or material furnished, or such services furnished or rendered, that the agreed price or reasonable value thereof has been paid. Jackson's Atlanta Ready Mix Concrete Co. v. Industrial Tractor Parts Co., 139 Ga. App. 422, 228 S.E.2d 324 (1976) (decided prior to 1983 amendment, which rewrote subsection (b)).

- O.C.G.A. § 44-14-361(b), which gives an owner a defense against the obtaining of a lien by a laborer or materialman where the owner has obtained a certificate from the contractor or other person at whose instance the work was done that the agreed price or the reasonable value of the material and labor furnished has been paid, contemplates a relationship between the contractor and owner wherein the contractor contracts for material and labor singularly and independently and for which the owner could not and would not be liable in the first instance. Fitts v. Addis, 83 Ga. App. 696, 64 S.E.2d 466 (1951) (decided prior to 1983 amendment, which rewrote subsection (b)).

- In an action by a materialman to foreclose a lien for material furnished a contractor for the improvement of real estate of others, the owners of such real estate may defend by showing that they have paid the full contract price to the contractor and that the money paid has been applied by the contractor to the settlement of debts incurred in the performance of the contract, which would have been liens upon the property improved. Ingram v. Barfield, 80 Ga. App. 276, 55 S.E.2d 725 (1949).

- When an independent contractor, in fact as well as in name, erects a building the owner may defeat liens by showing that the owner has paid in good faith the full amount of the contract price in discharge of valid liens against the premises. Robinson v. Reese, 175 Ga. 574, 165 S.E. 744 (1932).

- In a suit by a materialman to foreclose a lien for material furnished a contractor for the improvement of real estate of others, the owners of such real estate may defend by showing that they have paid the full contract price to the contractor and that the money paid has been applied by the contractor to the settlement of debts incurred in the performance of the contract, which would have been liens upon the property improved. Davenport Bros. v. Pepper, 108 Ga. App. 372, 133 S.E.2d 54 (1963).

- Where corporate lessee ratified a contract executed by its president with the unpaid contractor and had used the equipment installed, the lien of the contractor attached to lessor's property even though the president had mistakenly signed the contract as president of a nonexistent entity. Underground Festival, Inc. v. McAfee Eng'r Co., 214 Ga. App. 243, 447 S.E.2d 683 (1994).

- It is no defense to the foreclosure of a materialman's lien that other materialmen may claim liens which, if added to the amount claimed in the foreclosure suit and the payments made to the contractor, and properly applied by him, would exceed the contract price. Tuck v. Moss Mfg. Co., 127 Ga. 729, 56 S.E. 1001 (1907).

- The fact that, in an action to foreclose on a materialman's lien, there are other such liens outstanding is not a defense unless and until such liens have been paid. Roberts v. Georgia S. Supply Co., 92 Ga. App. 303, 88 S.E.2d 554 (1955).

- That there may be other claims of lien in an amount in excess of that portion of the contract price not applied to payment of valid claims for labor and materials is no defense to a lien properly asserted. Solomon v. Robert Spector Lumber Co., 109 Ga. App. 801, 137 S.E.2d 473 (1964).

For case where owner's compliance with O.C.G.A. § 44-14-361 justified summary judgment, see Lowe's of Ga., Inc. v. Merwin, 156 Ga. App. 876, 275 S.E.2d 812 (1981).

Foreclosure

Requirements for foreclosure of materialman.

- A materialman or subcontractor, in order to foreclose a lien must have a judgment against the contractor or join the contractor in the suit to foreclose. Lombard v. Trustees of Young Men's Library Ass'n Fund, 73 Ga. 322 (1884); Royal v. McPhail, 97 Ga. 457, 25 S.E. 512 (1895); Clayton v. Farrar Lumber Co., 119 Ga. 37, 45 S.E. 723 (1903); Buck v. Tifton Mfg. Co., 4 Ga. App. 695, 62 S.E. 107 (1908).

- There can be no valid foreclosure of a materialman's lien for material furnished to a contractor and used in improving the real estate of another person against which the lien is claimed in the absence of a judgment in favor of the materialman against the contractor for the price or value of such material. Smith v. Walker, 194 Ga. 586, 22 S.E.2d 160 (1942).

Where a lien upon the premises improved by the furnishing of materials by a materialman to a contractor is claimed by the materialman, under O.C.G.A. § 44-14-361, it is necessary, in order to foreclose such lien, that the materialman have a judgment against the contractor. Gibbs v. Carolina Portland Cement Co., 50 Ga. App. 229, 177 S.E. 760 (1934).

- In general, judgment against the contractor or action against the contractor is a necessary incident to the foreclosure of a materialman's lien. This is not true where the owner has brought an action in equity against both contractor and materialman to enjoin foreclosure. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210 (1914), writ dismissed, 241 U.S. 687, 36 S. Ct. 451, 60 L. Ed. 1237 (1916).

- Want of title in the defendant to the premises on which the lien is claimed, and alleged title in a third person who is no party to the action will not bar an action for foreclosing and enforcing the lien under O.C.G.A. § 44-14-361. Ford v. Wilson & Co., 85 Ga. 109, 11 S.E. 559 (1890).

- One of the conditions precedent to the foreclosure of the liens specified in O.C.G.A. § 44-14-361 is that action must be brought by the laborer or materialman against the person with whom the debt was contracted, either the owner or the contractor, as the case may be, within 12 months from the time when the debt became due. Jordan Co. v. Adkins, 105 Ga. App. 157, 123 S.E.2d 731 (1961); Allied Asphalt Co. v. Cumbie, 134 Ga. App. 960, 216 S.E.2d 659 (1975).

- In giving to the materialman a lien, O.C.G.A. § 44-14-361 expressly states that in order to make good a lien the materialman must both record and foreclose within the statutory periods. The record of the lien in time is no more essential to its creation than its foreclosure in time, and the lien comes into potential existence only when the statute is satisfied. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935).

- O.C.G.A. § 44-14-361 requires that the materialman should make demand, and prosecute the collection of the claim, within 12 months after the same shall become due and payable. The materialman should aver that demand was made within the time, and the materialman's proceedings to collect should be, on their face, within the time limited. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935).

- Where no action predicated upon the claim of lien is instituted in 12 months, no lien is created upon the real estate and building as against the title of the claimant. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935).

- The lien provided for in favor of a materialman is not absolute, but must be completed, made good, or perfected in accordance with the provisions of O.C.G.A. § 44-14-362. It is only inchoate or incipient until a judgment finally perfects it. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 338, 18 S.E.2d 61 (1941).

- Where an owner of real estate makes an express contract with a contractor for heating equipment, and before the work is finished makes a separate and distinct contract for plumbing, the items furnished under each are separate and distinct, and the delivery dates under one contract may not be used for the purpose of perfecting a lien under the other; aliter, if all the material be furnished under one and the same contract. Crane Co. v. Hirsch, 61 Ga. App. 632, 7 S.E.2d 83 (1940).

Where tenant makes a contract for plumbing, ratification thereof by the owner does not make the plumbing contract a part of earlier heating contract. Therefore, the delivery date of an article under the plumbing contract cannot be used to determine the time when the lien for the heating material should be filed. Crane Co. v. Hirsch, 61 Ga. App. 632, 7 S.E.2d 83 (1940).

- Before the rendition of a judgment in favor of a materialman's lien claimant the claimed lien is only inchoate, and the failure of the claimant to perfect the lien as provided by O.C.G.A. § 44-14-361.1 vitiates it, not only as against third persons, but as against the claimant. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61 (1941).

Justice of the peace court is without jurisdiction to enforce lien given by O.C.G.A. § 44-14-361. McAuliffe v. Baum, 142 Ga. 590, 83 S.E. 239 (1914).

- An entire lien claimed by a materialman, and recorded in accordance with O.C.G.A. § 44-14-361, cannot be enforced by dividing the amount and giving notes of less than $100.00 each and suing them in a court. O.C.G.A. § 44-14-361 contemplates but a single lien as to each transaction and a single action to enforce it. Bell & Bro. v. Rich, 73 Ga. 240 (1884).

- Where a materialman undertakes to foreclose a lien for material furnished to a contractor or some person other than the owner for the improvement of the owner's real property, it is necessary for the materialman to obtain a money verdict against the contractor or person to whom the materials are supplied in order to enforce the lien against the property improved. Spector v. Model Constr. Co., 95 Ga. App. 14, 96 S.E.2d 900 (1957).

- The foreclosure proceedings set forth in O.C.G.A. § 44-3-109 for condominium assessments are simplified, and distinct from the proceedings for the creation and enforcement of other types of liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).

- The sole requirements for creation of the lien for assessments are contained in O.C.G.A. § 44-3-109, and it is only the actual foreclosure proceedings which must be in the same manner as other liens for the improvement of real property. Thus, the judgment and execution of the lien must be entered by the appropriate superior court. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).

- Insofar as O.C.G.A. § 44-14-361.1 provides that, notwithstanding certain exceptions, it is incumbent upon the party asserting the lien to file an action or obtain judgment against the contractor as a prerequisite to enforcing a lien against the property so improved, following which said party may, subject to the provision of O.C.G.A. § 44-14-361, enforce lien directly against the property so improved, in an action against the owner thereof, materialman's failure to file notice of an action against the contractor renders its claim of lien unenforceable. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579, 271 S.E.2d 712 (1980).

- It is proper practice for one seeking to enforce against the owner of real estate a lien for labor and material, arising under O.C.G.A. § 44-14-361, to join in an action the owner of the realty and the person who contracted with the latter for the erection of the building thereon. Millers Nat'l Ins. Co. v. Hatcher, 194 Ga. 449, 22 S.E.2d 99 (1942).

- A complaint seeking to foreclose the lien of a laborer and materialman created under the provisions of O.C.G.A. § 44-14-361 must affirmatively show that all of the conditions precedent set forth in O.C.G.A. § 44-14-361.1 have been complied with or that the case is within one of the exceptions made by the various amendments to O.C.G.A. § 44-14-361.1(3). Jordan Co. v. Adkins, 105 Ga. App. 157, 123 S.E.2d 731 (1961).

In order to render real property subject to foreclosure for material supplied, it must appear that the articles alleged to be lienable under O.C.G.A. § 44-14-361 have become fixtures. Accordingly, the furnishing of chattels used as loose, movable articles will not entitle a person to a lien, even though they were furnished under a contract which included materials for the construction of the building in which they are used. Skandia Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279, 277 S.E.2d 282 (1981).

- Where materials for improvement of real estate are furnished to the owner, the materialman may foreclose the lien by alleging and proving that the materials were supplied the owner for that purpose. Spector v. Model Constr. Co., 95 Ga. App. 14, 96 S.E.2d 900 (1957).

- In order to recover on a mechanic's lien for material furnished, it is necessary to show that specific material of the value alleged was delivered on the property and that it was consumed in the construction of the improvement. United Bonding Ins. Co. v. Good-Wynn Elec. Supply Co., 124 Ga. App. 545, 184 S.E.2d 508 (1971).

- Complaint which fails to show that there was a contract with the owner of the property, or that the owner adopted the contract as one made for the owner, so as to bring the owner into contractual relations with the contractor furnishing the materials, does not state a cause of action for the foreclosure of a materialman's lien. Marshall v. Peacock, 205 Ga. 891, 55 S.E.2d 354 (1949).

- In the absence of allegations of a contract, and the amount to be paid under the contract for materials, a complaint in an action to establish a materialman's lien fails to state a cause of action for any affirmative relief and a trial judge does not err in sustaining the general demurrers (now motions to dismiss). Lumber Fabricators, Inc. v. Gregory, 213 Ga. 356, 99 S.E.2d 145 (1957).

Where complaint does not allege any contractual relation between individual and real estate company in connection with improvements alleged to have been made, so as to allege that the individual comes within the meaning of "some person other than the owner," the complaint alleges that the individual was a stranger as to the company. Morgan v. May Realty Co., 86 Ga. App. 261, 71 S.E.2d 438 (1952).

- A complaint, by a materialman, does not set out a cause of action for a judgment establishing a lien upon the property improved, where it is not alleged that a claim of lien has been filed and recorded as required by O.C.G.A. §§ 44-14-361 and44-14-361.1. King v. Rutledge, 208 Ga. 172, 65 S.E.2d 801 (1951).

- A mere averment, that a materialman on a certain date "furnished and delivered material on the premises," without any other fact, will not suffice to support a bare legal conclusion by the pleader that "such delivery constituted actual implied notice" to the security-deed holder that material was being furnished. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619 (1942).

- Materialmen are charged with knowledge of the premises upon which they filed their claim of lien, and they are charged with knowledge of the premises to which they delivered the materials and where they knew that these premises differed, in plenty of time to properly record a claim of lien as required by law, they cannot seek the aid of a court of equity to relieve them from their own negligence. King v. Rutledge, 208 Ga. 172, 65 S.E.2d 801 (1951).

- It is the owner's responsibility to see to it that the payments which the owner makes on the construction contract price are properly disbursed by the contractor to those having valid claims for labor and materials, and in establishing the owner's defense to the foreclosure the owner has the burden of showing that this was done. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782 (1969).

- In a proceeding to foreclose a materialman's lien, it is incumbent upon the plaintiff-materialman to show that the amount for which the materialman asserts a lien comes, in whole or in part, within the contract price agreed on between the contractor and the owner of the property improved. Young v. Harley-Mitchell Hdwe. Co., 173 Ga. 35, 159 S.E. 567 (1931).

- The burden of showing that the amount for which a lien is claimed by a subcontractor, is not more than the contract price of the improvements, lies on the subcontractor. Stevens v. Georgia Land Co., 122 Ga. 317, 50 S.E. 100 (1905); Georgia Steel Co. v. White, 136 Ga. 492, 71 S.E. 890 (1911).

- A showing by the materialmen of actual use of the material in the improvement of the real estate will satisfy the statutory requirement of "furnishing." Bryant v. Ellenburg, 106 Ga. App. 510, 127 S.E.2d 468 (1962).

- In suit by materialman to foreclose a lien, where the owner and the contractor had varied the terms of the original contract so as to include additional construction, for which additional work no price was agreed upon, and subsequently defendant owner caused the contractor to cease work and employed other workmen to complete the construction, because of the variation of the written agreement, it was for the jury to say what the contract price for the complete work was. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65 (1947).

- While it is true that the purpose of a foreclosure suit is to establish a special lien against the property involved, and no general verdict and judgment can be obtained therein against the owner, the better practice in such cases is for the verdict to show a distinct finding by the jury that the plaintiff-materialman is entitled to a lien and to a given amount. But where, in such a proceeding, the verdict is for the full amount claimed, it can have no other construction than that the jury intended to find in favor of the lien claimed. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65 (1947).

- Where a materialman seeks to foreclose a lien against real estate which has been improved with material furnished by the materialman to a contractor for such purpose, the materialman cannot recover a general verdict and judgment against the owner of the land for the value of the material furnished. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841 (1949).

A materialman cannot recover a general judgment against the owner of the land for the material furnished, for the simple reason that the owner is no party to the contract for the purchase of the material. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841 (1949).

- A materialman cannot recover a general personal judgment against the owner of the land for the material furnished in placing improvements thereon, unless it is shown that the owner is a party to the contract for the purchase of the material. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841 (1949).

- Although sewer work was required by a city for the completion of a subdivision, a subcontractor's off-site work was not an "improvement to the property" pursuant to O.C.G.A. § 44-14-361; consequently, the trial court properly granted summary judgment to the surety in the subcontractor's action to foreclose on a bond. Trench Shoring Servs. of Atlanta, Inc. v. Westchester Fire Ins. Co., 274 Ga. App. 850, 619 S.E.2d 361 (2005).

- While a personal judgment cannot be entered against a defendant landowner who is not a party to a contract for a purchase of material and labor in which a lien has been filed against the landowner's property, it is not necessary that there be a contract between the landowner and the materialman to obtain a judgment in rem. Chambers Lumber Co. v. Hagan, 118 Ga. App. 392, 163 S.E.2d 847 (1968); Columbus Square Shopping Ctr. v. B & H Steel Co., 150 Ga. App. 774, 258 S.E.2d 600 (1979).

Waiver of Lien

Lienholders who do not waive lien by taking personal security.

- Contractors, materialmen, machinists, and manufacturers of machinery do not by the taking of personal security waive the lien given them under O.C.G.A. § 44-14-361. J.M. Wells Supply Co. v. Shiels, 103 Ga. App. 822, 121 S.E.2d 36 (1961); Rembrant, Inc. v. Phillips Constr. Co., 500 F. Supp. 766 (S.D. Ga. 1980).

- While mechanics who have taken personal security thereby waive their right to a lien, materialmen have a lien as well when they take personal security as when they do not. J.M. Wells Supply Co. v. Shiels, 103 Ga. App. 822, 121 S.E.2d 36 (1961).

Taking of personal security does not constitute waiver of lien given materialmen under O.C.G.A. § 44-14-361. Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49, 198 S.E.2d 687, cert. denied, 414 U.S. 1092, 94 S. Ct. 723, 38 L. Ed. 2d 550 (1973).

- Where an owner makes payments to a contractor and the latter makes payments to a materialman, the materialman by applying the payments to a general account waives right to a lien. It is the materialman's duty to keep the accounts in such shape as to be able to make out a right to a lien. Williams v. Willingham-Tift Lumber Co., 5 Ga. App. 533, 63 S.E. 584 (1909).

- O.C.G.A. § 44-14-361 is silent as to other security, in case of materialmen, not mechanics. Ford v. Wilson & Co., 85 Ga. 109, 11 S.E. 559 (1890).

- The taking by the materialman of a promissory note from the person to whom the material was furnished, is not, in the absence of an express agreement, an extinguishment of the materialman's right to a lien for the indebtedness represented by the note. Pippin v. Owens, 29 Ga. App. 789, 116 S.E. 549 (1923).

- Contract between materialmen and a contractor that the former will indemnify the latter against liens is not a waiver as between the materialmen and the owner who has no notice of the contract. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210 (1914), writ dismissed, 241 U.S. 687, 36 S. Ct. 451, 60 L. Ed. 1237 (1916).

Materialman's refusal of the contractor's tender of partial payment did not constitute a waiver of a special lien otherwise properly created on property to which materials were supplied. Sanford v. Hodges Bldrs. Supply, Inc., 166 Ga. App. 86, 303 S.E.2d 280 (1983).

- A subcontractor contractually waives its right to file a lien on property by agreeing that a general contractor's contract with the property owner, which contains a lien waiver, be made part of its subcontract with the general contractor. MCC Powers v. Ford Motor Co., 184 Ga. App. 487, 361 S.E.2d 716 (1987).

- 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).

Nothing in this section indicates an intention to bind the state thereby. O.C.G.A. § 44-14-361 is in derogation of the common law, must be strictly construed, and one claiming thereunder must be brought clearly within the law. 1957 Op. Att'y Gen. p. 179.

§ 44-14-361 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.

Architect's lien cannot be filed against public property, and armories are public property. 1957 Op. Att'y Gen. p. 179.

Lien laws are intended for benefit of materialmen furnishing material to the contractor with the owner of the property whose property is being improved. 1957 Op. Att'y Gen. p. 180.

- Liens of a materialman are discharged as to the owner of property when the owner receives an affidavit of the constructor that all claims have been paid. 1957 Op. Att'y Gen. p. 180.