Preliminary Notice
of Right to File a Claim of Lien
The preliminary notice
is a useful tool to assist the subcontractor and materialman
in obtaining a valid claim of lien. To prevent a contractor's
affidavit from defeating a subcontractor's or materialman's
lien, Georgia permits the filing of a preliminary
notice of lien (See O.C.G.A. 44-14-361.3) The preliminary
notice must be filed in the Superior Court of the
County where the property is located. This notice
must be filed within 30 days after supplying labor,
services or material to the project. Georgia law requires
that a preliminary notice of lien be filed "within
thirty days after the date a party delivered any materials
or provided any labor or services for which a lien
may be claimed." There has been concern about
the interpretation of this statute as some interpret
it to mean within thirty days of the first delivery
of labor, materials or services, while others believe
the correct interpretation is thirty days after the
last delivery of labor, materials or services. Within
seven days of filing the preliminary notice, the subcontractor
must provide a copy by certified or registered mail
to the contractor or owner. This notice is particularly
valuable to those supplying labor or materials late
in the project.
Preliminary Notice Requirements
The name, address and telephone number of the subcontractor/materialman
The name and address of the contractor
or other person at whose direction the labor, services
equipment or materials were furnished
The name of the owner of the property as
identified on the real property records
A description of the property sufficient
to identify the property (a legal description is preferred)
A good description of the labor, equipment,
services or materials provided or to be provided
A preliminary notice must be canceled within ten days
after receipt of final payment. Failure to timely
cancel the notice may result in liability to the notice
filer for all damages to the owner.
An owner of residential property may make
a demand by certified or registered mail by that the
filer of a preliminary notice file a lien within ten
days after the date of the mailing of the demand.
If the party that filed the preliminary notice fails
to timely file the lien, then the owner may proceed
to have the preliminary notice canceled without any
recourse by the party that filed the preliminary notice.
The demand for filing a claim of lien must include
the same information contained in the preliminary
notice and the following statutory language:
"This demand was mailed to you on (Date) Pursuant
to Code Section 44-14-361-4. You are notified that
unless you file a claim of lien with respect to this
claim on or before the tenth day after said date of
mailing, your right to claim of lien will be dissolved."
An owner of non-residential property may also utilize
this demand, but the non-residential property owner
must wait until the potential lien claimant who filed
the preliminary notice has completed its contract,
been terminated from the project or abandoned the
work on the project.