Georgia Mechanics Lien. To be Safe—Also File a Pre-Lien.
No one wishes to surround himself or herself with unneeded mounds of paperwork. For this reason, many subcontractors and suppliers dispense with the serving of a pre-lien notice in Georgia, as a condition to filing their Georgia mechanic’s lien. The notice is called a Preliminary Notice of Lien. Possibly the reason for not serving is the rule of law that you do not have to serve it if the general contractor has not properly filed a Notice of Commencement. But for the reasons described herein, it is recommended that this notice always be served as a condition to filing your mechanic’s lien in Georgia.
As mentioned above, a general contractor has the option of filing with the superior court clerk’s office and posting the job site (within 15 days of starting work) a Notice of Commencement. Technically, if the notice has not been filed, subs and suppliers are not required to serve a pre-lien as a preamble to their Georgia mechanic’s lien. But there is a problem with failing to do so.
It immediately alerts the owner to your presence and the need to take care of you as a potential Georgia mechanics lien claimant. Moreover, there is the danger inherent in the general contractor representing to the owner that you have been paid when in actuality this has not occurred. At the end of the project, the prime may be required to give the owner a special affidavit which testifies all subs and suppliers have been paid in full. The owner is entitled to rely on this affidavit, thereby knowing that a Georgia lien cannot be filed. If there is a statement that you have been paid, you could well be precluded from recording your mechanics lien in Georgia. The owner could detrimentally rely upon that statement.
On the other hand, the possibility of a Georgia mechanics lien is more readily preserved with the notice. It is not uncommon for the owner to require a statement from you or a mechanics lien waiver before accepting the naked statement that you have been paid.
So in essence, the notice acts as a built-in obstacle to nonpayment. There is also the intangible aspect of showing how serious and professional you are about your potential Georgia mechanic’s lien rights.
Some never take for granted the question of how to file a mechanics lien in Georgia. Take all necessary steps to both preserve it and make more effective the ultimate filing of a mechanics lien.