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How do I use Affidavits of Nonpayment in Georgia?

In Levelset, there is a deadline to send an Affidavit of Nonpayment in Goergia if you have provided a lien waiver but still aren't paid. It looks like this document is required 60 days from signing the lien waiver. Do I have to send this document every time I have a progress billing that I'm not paid on but provided a waiver for already? Would I send this document throughout the job, for each unpaid progress billing?

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Sep 16, 2019

Georgia has unique lien waiver and lien deadline rules, and the Affidavit of Nonpayment is a crucial part of that. At the same time, it's easy to get mixed up when dealing with this affidavit. Let's look at exactly what the document does, then look at how an Affidavit of Nonpayment should generally be used in the overall Georgia mechanics lien scheme. Georgia mechanics lien waivers start out as conditional waivers - meaning, they're (initially) only effective to the extent that payment is actually received. However, 60 days after a Georgia lien waiver is submitted, that waiver will automatically convert to an unconditional lien waiver unless a mechanics lien has been filed or unless an Affidavit of Nonpayment has been filed. More on that rule here: Georgia’s Very Unusual Rules for Mechanics Lien Waivers. When an Affidavit of Nonpayment is filed, that document serves to show that payment hasn't been made as required. So, if payment on an invoice is actually received shortly after the waiver is submitted, then an Affidavit of Nonpayment is generally not required. But, if payment isn't received shortly after a waiver is submitted, filing an Affidavit of Nonpayment will prevent a previously-given lien waiver from waiving lien rights if payment wasn't actually received. And, it will do so without an actual mechanics lien filing - so it still provides an opportunity to resolve the issue before things get more adversarial with a mechanics lien filing. But, in sum - an Affidavit of Nonpayment should very typically not be sent after a lien waiver if the amount on that waiver was paid in full. But, if the 60-day window is closing after a waiver has been given, filing an Affidavit of Nonpayment might be a good option to preserve lien rights. For more information on Georgia mechanics liens: Georgia Mechanics Lien Guide and FAQs For a little more background on how an Affidavit of Nonpayment is filed, here's another Expert Center question we've gotten on the topic: How do I file an Affidavit of Nonpayment?

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Mar 13, 2020

I wanted to follow up and confirm you've been paid on these projects where you've issued a lien waiver. 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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