2021 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;
   9. All suppliers furnishing rental tools, appliances, machinery, or equipment for the improvement of real estate; and
   10. All registered interior designers furnishing plans, drawings, designs, or other interior design services on or with respect to any 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; Ga. L. 2021, p. 674, § 3/HB 480.)

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).

The 2021 amendment, effective May 10, 2021, deleted "and" at the end of paragraph (a)(8), substituted "; and" for a period at the end of paragraph (a)(9), and added paragraph (a)(10). See Editor's notes for applicability.

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

- Ga. L. 1982, p. 1144, § 1 amended this Code section, to become effective April 1, 1983. However, that 1982 Act was repealed by Ga. L. 1983, p. 1450, § 4, effective March 31, 1983. This Code section, as amended by the 1982 Act, was also amended by Ga. L. 1983, p. 3, § 33, effective January 25, 1983; however, owing to the repeal of the 1982 Act, that amendment may not be given effect.

Ga. L. 2021, p. 674, § 7/HB 480, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and Sections 2 through 8 of this Act shall apply to labor, services, or materials performed or furnished by registered interior designers on or after such date." This Act was approved by the Governor on May 10, 2021.

- 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

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.

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Architects, §§ 21, 22. 53 Am. Jur. 2d, Mechanics' Liens, §§ 5, 6, 60 et seq., 111, 93 et seq., 112, 179, 187, 242-244, 253-256.

- 56 C.J.S., Mechanics' Liens, §§ 1 et seq., 37 et seq., 96 et seq., 133, 196 et seq., 211 et seq.

- Validity and effect of provision in contract against mechanic's lien, 13 A.L.R. 1065; 102 A.L.R. 356; 76 A.L.R.2d 1087.

Elements bearing directly upon the quality of a contract as affecting the character of one as independent contractor, 20 A.L.R. 684.

Construction of contract for compensation of architect, 20 A.L.R. 1356.

Requisites and sufficiency of notice of mechanic's lien in case of "cost plus" contract, 26 A.L.R. 1328.

Freight charges on material as within mechanic's lien statute giving lien for labor or material, or within contractor's bond securing such claims, 30 A.L.R. 466.

Mechanic's lien for material specially fabricated for and adapted to building, but not used therein, 33 A.L.R. 320.

Mechanic's lien: owner's right to deduction on account of damages sustained through contractor's delay, 37 A.L.R. 766.

Independence of contract considered with relation to the scope and construction of statutes, 43 A.L.R. 335.

Mechanic's lien for building erected by licensee, 45 A.L.R. 581.

After-acquired title as supporting mechanic's lien, 52 A.L.R. 693.

Substitution or replacement of material as affecting time for filing mechanics' lien, 52 A.L.R. 984.

Interest of vendor under executory contract for sale of realty as subject to mechanics' lien for labor or materials furnished to purchaser, 58 A.L.R. 911; 102 A.L.R. 233.

Mechanics' lien for services of person supervising construction of building, architect, etc., 60 A.L.R. 1257.

Right to benefit of contractor's bond or mechanic's lien statute for labor or material furnished to contractor or subcontractor, as affected by acceptance from him of written obligation, 66 A.L.R. 342.

Mechanic's lien for labor or material for improvement of easement, 77 A.L.R. 817.

Mechanic's lien as affected by agreement to pay with property other than money, 81 A.L.R. 766.

Priority as between lien of corporation and rights of pledgee or bona fide purchaser of corporate stock, 81 A.L.R. 989.

Right of one other than contractor, laborer, or materialman to file mechanics' lien, 83 A.L.R. 11.

Who is a "contractor" within provisions of Mechanics' Lien Law which limit liens for material or labor furnished to contractor to amount earned but unpaid on contract, or give such liens by subrogation, 83 A.L.R. 1152.

Construction, application, and effect of provision of mechanic's lien statute as to quantity or area of land around improvement which may be subjected to the lien, 84 A.L.R. 123.

Material or labor employed in construction of concrete forms as basis of mechanics' lien or claim under contractors' bond, 84 A.L.R. 460.

Lien on vendee's or optionee's interest in respect of real property as attaching to title acquired by completion of contract or exercise of option, 85 A.L.R. 927.

Church property as subject of mechanic's lien, 85 A.L.R. 953.

Canals, drains, ditches, and wells as within term of Mechanics' Lien Law descriptive of improvement, 92 A.L.R. 753.

Right to mechanics' lien against fee for work or material furnished under contract with, or consent of, life tenant, 97 A.L.R. 870.

Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128.

Remedy available to holder of mechanic's lien which has priority over antecedent mortgage or vendor's title or lien as regards improvement, but not as regards land, where it is impossible or impractical to remove the improvement, 107 A.L.R. 1012.

Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 111 A.L.R. 1453; 142 A.L.R. 362.

Existence and extent of lien or claim for labor and materials furnished to subcontractor, against money due principal contractor for public improvement, 112 A.L.R. 815.

Right of one who contracts with, or furnishes labor or material to, public contractor's surety after latter has taken overwork, in respect of part of contract price retained by public agency, 122 A.L.R. 511.

Time for filing claim for mechanic's lien as affected by removal by, or return to, claimant of part of material furnished, 122 A.L.R. 755.

Time limitation in mechanic's lien statute as a limitation of the right or only of the remedy, 139 A.L.R. 903.

Who is contractor or subcontractor, as distinguished from materialman, for purposes of mechanic's lien, contractor's bond or other provision for securing compensation under construction contract, 141 A.L.R. 321.

Existence of more than one contract between owner and contractor as affecting notice or filing of mechanic's lien by materialman or subcontractor, 175 A.L.R. 330.

Right to mechanic's lien as for "labor" or "work," in case of preparatory or fabricating work done on materials intended for use and used in particular building or structure, 25 A.L.R.2d 1370.

Mechanic's lien for grading, clearing, filling, landscaping, excavating, and the like, 39 A.L.R.2d 866.

Right to mechanic's lien upon leasehold for supplying labor or material in attaching or installing fixtures, 42 A.L.R.2d 685.

Amount for which mechanic's lien may be obtained where contract has been terminated or abandoned by consent of parties or without fault on contractor's part, 51 A.L.R.2d 1009.

Validity of statute making private property owner liable to contractor's laborers, materialmen, or subcontractors where owner fails to exact bond or employ other means of securing their payment, 59 A.L.R.2d 885.

Priority as between mechanic's lien and purchase-money mortgage, 73 A.L.R.2d 1407.

Time for filing notice or claim of mechanic's lien where claimant has contracted with general contractor and later contracts directly with owner, 78 A.L.R.2d 1165.

Sufficiency of notice under statute making notice by owner of nonresponsibility necessary to prevent mechanic's lien, 85 A.L.R.2d 949.

Mechanic's lien for services in connection with subdividing land, 87 A.L.R.2d 1004.

Taking or negotiation of unsecured note of owner of contractor as waiver of mechanic's lien, 91 A.L.R.2d 425.

What constitutes "commencement of building or improvement" for purposes of determining accrual of mechanic's lien, 1 A.L.R.3d 822.

Charge for use of machinery, tools, or appliances used in construction as basis for mechanic's lien, 3 A.L.R.3d 573.

Failure of artisan or construction contractor to comply with statute or regulation requiring a work permit or submission of plans as affecting his right to recover compensation from contractee, 26 A.L.R.3d 1395.

Surveyor's work as giving rise to right to mechanic's lien, 35 A.L.R.3d 1391.

Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building, as supporting a mechanics' lien, or as extending time for filing such a lien, 51 A.L.R.3d 1087.

Building and construction contracts: contractor's equitable lien upon percentage of funds withheld by contractee or lender, 54 A.L.R.3d 848.

Assertion of statutory mechanic's or materialman's lien against oil and gas produced or against proceeds attributable to oil and gas sold, 59 A.L.R.3d 278.

Garageman's lien: modern view as to validity of statute permitting sale of vehicle without hearing, 64 A.L.R.3d 814.

Enforceability of single mechanic's lien upon several parcels against less than the entire property liened, 68 A.L.R.3d 1300.

Effect of bankruptcy of principal contractor upon mechanic's lien of subcontractor, laborer, or materialman as against owner of property, 69 A.L.R.3d 1342.

Enforceability of mechanic's lien attached to leasehold estate against landlord's fee, 74 A.L.R.3d 330.

Removal or demolition of building or other structure as basis for mechanic's lien, 74 A.L.R.3d 386.

Release or waiver of mechanic's lien by general contractor as affecting rights of subcontractor or materialman, 75 A.L.R.3d 505.

Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.

Garageman's lien for towing and storage of motor vehicle towed from private property on which vehicle was parked without permission, 85 A.L.R.3d 240.

Right of subcontractor's subcontractor or materialman, or of materialman's materialman, to mechanic's lien, 24 A.L.R.4th 963.

Delivery of material to building site as sustaining mechanic's lien - modern cases, 32 A.L.R.4th 1130.

Construction and effect of statutes requiring construction fundholder to withhold payments upon "stop notice" from subcontractor, materialman, or other person entitled to funds, 4 A.L.R.5th 772.

Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.

Landlord's liability to third party for repairs authorized by tenant, 46 A.L.R.5th 1.

Subjection of municipal property, or alleged municipal property, to mechanics' liens, 81 A.L.R.6th 363.