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Materialmen's Notice of Lien

By: James C. Busch

On September 13, 1991 the Georgia Supreme Court in the case of Consolidated Systems, Inc. v. Amisub, Inc., 408 S.E.2d 109 (Ga. 1991) confirmed that the “… filing of imperfect notice (of lien) does render the lien unenforceable…” The Consolidated case continues the long held position of the Georgia courts that lien statutes are to be enforced strictly. In addition the Consolidated case is important for several other reasons. First, it confirms the requirement of notice of liens, and secondly, it confirms that any error in a notice of lien is fatal to all lien rights.

In general terms the filing of the notice of lien is the final step to perfect a lien in Georgia. The Official Code of Georgia (O.C.G.A.) 44-14-361.1 defines the requirements for the creation of materialmen’s liens and notice of liens. O.C.G.A. 44-14-361.1(a) also states that “on the failure of any of them (the requirements) the lien shall not be effective or enforceable.” Given the strict compliance generally required and the clear language of the lien statute it is important to completely understand the requirements of notice of liens so as to successfully complete the lien process.

O.C.G.A. 44-14-361.1(a)(3) specifically addresses the requirements for notices of lien. By way of procedure and effective July 1, 1991 a notice of lien must be filed within 14 days after the filing of an action for the recovery of the lien claim amount. With this 14 day requirement it is important to keep in mind that many of the busier counties often take weeks to process a lien thereby limiting the ability to quickly file both a lien and complaint. The ability to file both the lien and complaint within a short period of time is restricted since one should not file the complaint until one has obtained the lien information. The notice of lien is required to be filed 14 days after the complaint and it often takes more than 14 days to obtain lien information. The moral of the story is that one should not wait until to the last moment to file the lien and complaint.

The constructional requirements of a notice of lien are as follows: It must contain 1) caption referring to the then owner of the property against which the lien was filed, 2) reference to a deed or other recorded instrument in the chain of title of the affected property, 3) identity of the court wherein the action is brought including the style and the number of the case in addition to the names of all parties, as well as the date the case was filed, 4) the book and page number of the records of the county wherein the subject lien is recorded, and 5) the notice of lien shall be executed, under oath, by the party claiming the lien or by his attorney of record. Again, keep in mind that according to the Consolidated case any error, even slight, non-compliance with the above information requirements will render the lien unenforceable. As a result, notice of liens require a great deal of attention to detail.

In conclusion, it is important to verify that any person attempting to perfect lien rights on your behalf is aware of the requirements of notice of liens and the recent developments in the lien statutes. While notice of liens is rarely discussed in conjunction with liens, one can see from the above discussion that it is not only critical to one’s lien rights but highly defined and restricted.

Mr. Busch is an attorney specializing in commercial and construction litigation for Busch, Reed, Jones & Leeper, P.C. in Marietta, Georgia

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