Right to File
Preliminary Notice of Right to File a Claim of Lien
The preliminary notice is a useful tool to assist the subcontractor and material man in obtaining a valid claim of lien. To prevent a contractor's affidavit from defeating a subcontractor's or material man'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/material man
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.