In Georgia, most subcontractors and suppliers must send preliminary notice to retain the right to file a mechanics lien or make a bond claim. A preliminary notice is an informational document typically sent to the GC and/or the property owner near the beginning of a construction project. Here's what you need to know about the rules and requirements for sending (and filing) preliminary notice in Georgia.
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Notice of intent to lien
Georgia preliminary notice requirements for:
General contractors are not required to send a preliminary notice on private projects.
General contractors are not required to send a preliminary notice on public projects.
Since GCs will not make a claim against their own bond for non-payment, they do not have bond claim rights, and have no preliminary notice requirement.
Subcontractors and suppliers often must send notice on private projects.
Notice must be sent within 30 days
Notice is sent to owner and prime contractor
Notices CANNOT be sent late
If the GC filed a notice of commencement, parties who do not have a direct contract with the owner must send notice.
Subcontractors and suppliers often must send notice on public projects.
Notice must be sent within 30 days
Notice is sent to the original contractor
Notice CANNOT be sent late
If a notice of commencement was filed, parties who did not contract directly with the owner must send a preliminary notice to the general contractor to preserve their lien rights.
On private projects (e.g. residential or commercial), any party who did not contract with the property owner must send a Notice to Contractor form to the owner and prime contractor within 30 days of first furnishing. However, this requirement only holds if a Notice of Commencement is filed. If a Notice of Commencement wasn’t filed on the project, a preliminary notice isn’t required to protect lien rights.
Georgia has a different type of preliminary notice for use on private projects, known as a Preliminary Notice of Lien Rights. When filed with the appropriate county office, this notice prevents lien rights from being knocked out by a prime contractor’s affidavit or lien waiver attesting to the payment of all subcontractors and suppliers. The notice should be filed with the clerk of the superior court of the county in which the project is located, and a copy of the filed notice should be sent to the owner and general contractor within 7 days of filing by certified mail return receipt requested.
On public projects, Georgia requires all parties who do not have a direct contract with the general contractor to provide preliminary notice. This notice preserves the right to make a bond claim in Georgia if the general contractor has properly filed and posted a Notice of Commencement. But, subcontractors hired directly by the GC won’t need to send any preliminary notice.
A Preliminary Notice of Lien Rights (both residential and commercial) may be filed with the county clerk’s office no later than 30 from furnishing any labor and/or materials to the project; the earlier the better. After filing, a copy must then be sent to the owner within 7 days of filing.
Information Notice to Owner must be delivered at the time of signing the construction contract with the owner. However, if the contract is for less than $2,000 originally, and then exceeds the $2,000 threshold, the notice must be delivered within 5 days of the date on which the contractor knows or reasonably should know that the contract will exceed $2,000.
On public construction projects, preliminary notice must be received by the general contractor within 30 days of the filing of the notice of commencement, or within 30 days of the claimant’s first furnishing of labor and/or materials to the project – whichever is later.
If a party fails to serve a required Notice to Contractor before the deadline, they lose the right to file a mechanics lien or make a bond claim in the event they are not paid. However, if a Notice of Commencement was not filed on the project, then sub-tier party lien rights are not affected.
This Preliminary Notice of Lien Rights should be filed with the clerk of the superior court of the Georgia county in which the project is located, and a copy of the filed notice should be sent to the owner and general contractor within 7 days of filing by registered or certified mail or statutory overnight delivery.
How should a Notice to Contractor be sent in Georgia?
On private construction projects, the Notice to Contractor must be sent by registered or certified mail, or by statutory overnight delivery. Where the statute calls for delivery by certified mail, standard certified mail is recommended and there is no need to send with return receipt requested.
On public projects, Georgia statutes do not specify how the preliminary notice must be delivered to the general contractor. Because of this, a method of delivery with proof of delivery is likely advisable. Sending the notice by certified or registered mail, or by personal service is likely sufficient.
Is the Georgia Preliminary Notice Requirement met when sent or delivered?
The preliminary notice is considered delivered at the time of mailing. When notices must be sent by certified mail, Georgia courts have consistently held that actual delivery is immaterial, and that the sending party need only demonstrate that the mailing was sent according to statutory requirements.
Are Georgia's preliminary notice laws drastically different from Florida's notice laws?
Georgia's preliminary notice rules are a little bit different than Florida's. Further, if the property is owned by a public agency, the rules will also change a bit based on that ownership, as well. Generally, subcontractors who are hired directly by the GC on a public project won't need to send preliminary notice in order to make a bond claim later on. Though, it's still a good idea to send notice - regardless of what's required. But, if you were hired by someone else - like another sub - then you'd need to send a prelim in order to preserve rights against the project's payment bond. For a detailed discussion on Georgia's preliminary notice requirements on public and private projects, this resource should be useful (scroll a bit for public jobs): Georgia Preliminary Notice Guide and FAQs. For a broad discussion on the difference between public and private jobs: The Difference Between Public and Private Projects.
Can a subcontractor add a property owner to a preliminary notice/lien claim in GA if they didn't order services?
Georgia's mechanics lien statute doesn't provide insight into how subcontractors should handle situations where lessees are having work done. So, generally, it can be a bit of a crapshoot when deciding how to proceed there - and taking the most conservative approach possible, and notifying everyone of your work, is generally a good idea. Still, GA has two different preliminary notices that will need to be taken into account here. You can learn about the differences between those notices here: The Difference Between “Notice to Contractor” and “Preliminary Notice of Lien Rights.” Interestingly, as discussed in that article, a Notice of Contractor is a mailed document, not a filed one. Meaning, the document should be effective once it's received to put the intended parties on notice. As a result, "taking back" the mailed preliminary notice might not have any impact on your lien rights. Though, releasing and editing a Preliminary Notice of Lien Rights could.
Notice to Contractor
If you're referring to the Notice to Contractor document, that preliminary notice is simply an informational document that's mailed. Including the owner on that doc is typically a good idea, but not necessarily required. Under § 44-14-361.5(c)(2) of Georgia's lien statute, the document must contain "The name and address of each person at whose instance the labor, services, or materials are being furnished..." Generally, it's safe for a subcontractor to assume the owner is at least somewhat involved and should be included, but I suppose that won't always be the case. Still - it's best for a sub to err on the side of caution and include all relevant parties, particularly when those parties have been included in the project's Notice of Commencement. So, including both the owner and the lessee would make sense. In terms of recipients, it must be specifically be sent to the owner, according to § 44-14-361.5. An owner might try and argue that the statute means the "owner of the project," thereby the lessee. But, there's really no reason to deviate from what the statute clearly lays out as a requirement - notice being sent to the owner. With that being said, the safest way to proceed would likely to send notice to both the owner and the lessee in charge of the project.
Preliminary Notice of Lien Rights
There's no wiggle room with a Preliminary Notice of Lien Rights. § 44-14-361.3(a)(4) states that the notice must contain "the name of the owner of the real estate..." So, if an owner is upset about being included on the notice, explaining that it's required by statute might provide some relief. Just like with the other notice, including the lessee's information is generally a good idea.
Our contract has a waiver or lien rights clause, what can I do? (Georgia)
Pursuant to Georgia law (O.C.G.A. §44-14-366), you cannot be asked to waive your right to lien in advance of performing the work. So the waiver would not be enforceable. Yes, you need to ensure you send a Notice to Contractor within 15 days of commencing work. It would be helpful to have legal counsel review your contract and advise you as to other steps that you can take, or that you can plan for, in the event you are not paid. For example, do you have the right to suspend work? Are payments to you contingent on the payment to the contractor by the owner? It would make sense to carefully calendar your payments and lien waivers. For example, if you sign a lien waiver, you need to take action within 60 days of the date on the waiver or you could lose your lien rights, or right to claim on a payment bond. You should also determine if the contractor provided a payment bond on the project, as this could be an additional avenue of recovery.
If a Project Participant Is Not in Direct Contact with the Property Owner, Preliminary Notice May Be Required
The only situation where a preliminary notice is required is when the party did not contract with the property owner, and there was a Notice of Commencement filed on the project by the property owner. If these two conditions are met, the preliminary notice is required to be sent within 30 days of the first date of furnishing labor or materials to the project, or within 30 days of the filing of the Notice of Commencement, whichever date is later. Those who contracted directly with the property owner do not have any preliminary notice requirements. If there was no Notice of Commencement filed, preliminary notice may not be required but can be sent by any party to ensure their lien rights.
First, read the guide to preliminary notices in Georgia. The guide walks you through preparing and serving your notice, including everything you need to include in the form, the deadlines to deliver the form, and the guidelines for serving the form properly.
Georgia’s mechanics lien laws are specific about the language and information that you must include on the notice. Levelset’s free forms were written by construction attorneys to meet the strict rules under Georgia law. Download a free Georgia preliminary notice form here.
Fill out the form
Be careful! Accuracy is important.
Make sure all the information on your notice is complete and accurate. Making a mistake on a Georgia preliminary notice form could eliminate your right to file a mechanics lien if you’re left unpaid. Verify and double check your information!
Deliver your preliminary notice
The last step is to deliver your Georgia preliminary notice. Preliminary notices in Georgia must be sent by registered mail, certified mail, return receipt requested, or statutory overnight delivery.
Send your preliminary notice to the address listed on the notice of commencement.
How to send a Preliminary Notice with Levelset
Select Preliminary Notice document.
Provide basic job information.
Levelset sends the document for you. Postage included!