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Sending Notice to Contractor based on an old Notice of Commencement

I sent a Notice of Furnishing based on an old Notice of Commencement - apparently for an earlier phase of the project. After a few months of working on the job, a new Notice of Commencement was filed which included the work I was performing. Will my original notice be effective to preserve mechanics lien rights? Or was I required to send a new notice after the new Notice of Commencement was filed?

1 reply

Mar 25, 2020

A Georgia subcontractor's Notice to Contractor rules and requirements rely heavily upon the GC's Notice of Commencement. In fact, § 44-14-361.5(c) of Georgia's mechanics lien statute explicitly states that a sender can use the information found on the Notice of Commencement to send their Notice to Contractor - including the owner and contractor's addresses on the Notice of Commencement. When there's more than one Notice of Commencement being filed, though, it's easy for confusion to occur - particularly when poor communication is present on the project. As for sending a revised or late notice - Georgia's deadline for sending a Notice to Contractor is strict. So, sending a Notice to Contractor after the deadline has passed won't work to revive or solidify lien rights.

Georgia's Notice to Contractor rules depend on the Notice of Commencement

Naturally, if there are separate Notices of Commencement being filed for separate phases of the project, things can get pretty tricky for those trying to send notice. But again - according to Georgia's mechanics lien statute, claimants can generally rely on the Notice of Commencement to provide key project information. So, if a GC failed to file their Notice of Commencement on time, and then a sub-subcontractor of theirs mistakenly sends a Notice of Contract under an old Notice of Commencement, there's probably a fair argument that the Notice of Contract was still sufficient to preserve lien rights. On the other side of the coin, Notice to Contract is required to be sent to the owner and to the contractor. And, when the notice isn't actually given to those parties, the loss of lien rights is possible. Plus, Georgia courts have held that a late Notice of Commencement will still be effective. Though, it doesn't sound like that case involved multiple Notices of Commencement. But still - when a Notice to Contractor is mistakenly sent to the wrong contractor because the "right" contractor didn't file their Notice of Commencement on time - it's not hard to imagine that the courts might be a little more lenient. Further, if the contact information necessary for a Notice to Contractor was requested from your customer and/or the property owner, but not given - then that'd seem to be one more thing pointing at the impossibility of complying with Notice to Contractor requirements. Ultimately, though, if things actually came down to a dispute over whether or not the Notice to Contractor was valid - that issue would be decided by the courts. So, as for whether or not lien rights would exist: That's unfortunately not a black and white issue, and there are fair enough arguments on both sides of the spectrum.

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