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Affidavit of Nonpayment/Lien Claim

Hi, I'm working on projects in Georgia where customers require conditional waivers to be signed on progress billings. The GA waivers states that after 60 days of signing we are considered to be paid unless we send an affidavit of nonpayment or file a mechanics lien. So on every progress billing/invoice that we send and sign waivers on throughout the life of the project will require an affidavit of nonpayment or a lien claim filed before 60 days? Also, is the Affidavit being filed at the court?

2 replies

Sep 16, 2019

Georgia has some interesting lien waiver rules. To best understand the GA Affidavit of Nonpayment, it's important to understand Georgia waivers. Georgia mechanics lien waivers start out conditional, as you mention above. However, it's expected that payment will be made shortly after a lien waiver is submitted, or that the party submitting the waiver will either file an Affidavit of Payment or a mechanics lien claim if they aren't actually paid for the amount on the waiver. So, as a result, Georgia waivers begin as conditional waivers, but if no claim is made or if no affidavit is filed within 60 days of the waiver being submitted, the waiver automatically converts into an unconditional waiver (and lien rights are lost). So, if a waiver is submitted and payment is made in full for that waiver, an Affidavit of Nonpayment is generally not required. However, if a waiver is given but payment is not actually made, then an Affidavit of Nonpayment provides an opportunity to preserve lien rights without actually having to proceed with a mechanics lien quite yet. Much like a mechanics lien, an Affidavit of Nonpayment is filed with the county recorder in the county where the project is located. For more information on Georgia Affidavits of Nonpayment, here are two questions we've previously fielded on the Expert Center: (1) How do I use Affidavits of Nonpayment in Georgia? (2) How do I file a Georgia Affidavit of Nonpayment?

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Mar 13, 2020

I wanted to follow up and determine if your company was actually paid on your Georgia projects before the conditional waivers converted to unconditional waivers. If I can further assist your company with any unpaid invoices, please feel free to call or email. My firm can collect for you even when lien rights have expired or were never pursued. Mike Ross Miller, Ross & Goldman mross@mrgpartners.com (512)275-6412 Direct https://www.mrgpartners.com/levelset

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