Contractor’s Liens – Part 2Posted on October 30, 2013 by
This article is the second in a two-part discussion about contractor’s liens, specifically called mechanic’s and materialman’s liens in legal terminology. In last month’s article, I pledged to discuss two important items in more detail: (1) the requirements when filing a lien and (2) the requirement to file suit to enforce a lien.
First, the law demands several precise requirements in order to find that a contractor’s lien is enforceable. Because these requirements are technical and many, I have only highlighted some of the requirements below – those which are frequently omitted or incorrectly completed. Therefore, the contractor’s lien must:
- Be filed in the office of the clerk of the superior court in the county where the property is located within 90 days after substantial completion of the work or professional services;
- Include a notice that the owner has the right to contest the lien;
- Contain an adequate description of the property;
- State, in at least 12 point bold font, that the lien expires 395 days from the date of filing if no notice of commencement of lien action is filed; and
- A copy of the claim of lien must be sent to the owner of the property within two business days.
Again, to file an enforceable lien, the lien must meet the above requirements and several more. The absence, incompleteness or incorrectness of these requirements will render the lien unenforceable.
Second, a contractor must file suit and must do so within a year if he wants to preserve the lien after it has been filed. The suit must be followed by filing a notice of commencement. Failing to take these steps will void the lien or allow it to expire. The only time a contractor can enforce the lien directly against the property without filing suit is when the owner has absconded, suffered death or filed bankruptcy.
If a property owner has a lien filed against his property and wishes to force the contractor to file suit quicker than a year, then the owner can file a notice of contest. This notice of contest forces the contractor to file suit within 60 days of its filing or lose his lien rights. There are other options that are not discussed here that property owners can take advantage of if they dispute the lien.
Any contractor wishing to file a lien should retain an experienced attorney. The requirements under Georgia law are complex and riddled with pitfalls for the unwary. Because most attorneys will file a lien affordably, parties should not risk their chances of recovery because of a simple technical mistake.
Disclaimer: The information contained in this article is for informational purposes only and is not legal advice or a substitute for legal counsel. It does not constitute advertising or solicitation. The information in this article may or may not reflect the most current legal developments; accordingly, this article is not guaranteed to be complete, and should not be considered an indication of future results.