How do 60 day expiration of lien rights work for Georgia waivers?

2 years ago

On the Georgia lien waivers, there is language that says “WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF NONPAYMENT OR A CLAIM OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY PERIOD.” If we signed Interim Waivers and Release Upon Payment and we aren’t paid, does that mean we need to file a lien for each progress waiver? What if the 60 days expire but my last furnishing date was less than 90 days ago so I’m still within my lien rights timeline?

Senior Legal Associate Levelset

As you hinted at above, generally, a claimant will have 90 days from last furnishing to file a lien. If a Waiver and Release Upon Payment is issued, but payment does not actually come, an Affidavit of Payment or a Claim of Lien must be filed within 60 days of signing the Waiver/Release in order to preserve the lien rights for that particular sum. Unfortunately, both deadlines will have to be taken into account when determining whether lien rights are available.

This will restrict (but never extend) the deadline to utilize lien rights – the deadline to file a lien will be at the earlier of 90 days from last furnishing or 60 days from signing the Waiver/Release. It also creates a complex situation when progress payments are taken into account. Because Georgia mechanics liens may only be amended to reduce the amount of a given lien, it follows that multiple liens would need to be filed in the situation you described.

However, if both lien filings were to fall within the permissible time period for filing a lien (again, the earlier of 90 days from last furnishing or 60 days from signing the Waiver/Release- here, for each individual claim), they might be able to be included in the same filing. But if such an arrangement would cut it close on a deadline, it would certainly be advisable to file separate claims.

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