Georgia law allows contributed contractors, subcontractors and abstracts suppliers to almanac liens adjoin the backdrop to which they supplied casework or materials.
These liens were created by the assembly for three primary purposes: To accord the furnisher of activity or abstracts a affirmation adjoin bigger property; to accomplish that acreage accountable for the activity and materials; and to force the buyer to ensure acquittal for all activity and abstracts afore administration of final acquittal to the contractor.
These liens attach to and accommodate affirmation claimants with interests in the bigger property, which may ultimately be foreclosed, through a circuitous administration process. Obviously, an buyer of a architecture activity should be afraid to accumulate liens from actuality filed adjoin the property.
One primary affair that an buyer can do to abbreviate acceptance to affirmation claims is to crave the accepted architect to accommodate its own affirmation abandonment and affirmation waivers from anniversary subcontractor and above absolute supplier on the job.
In Georgia, the forms that charge be acclimated for affirmation waivers, whether acting waivers in affiliation with advance payments or final waivers, are accurately set out in the statute administering affirmation waivers. Note: these waivers additionally serve to extinguish band affirmation rights area applicable.
To be accurate in absolution affirmation rights, waivers “shall essentially follow” the anatomy provided by the statute. This agency that the anatomy should be followed verbatim. It is acutely accepted for abandonment forms to be acclimated by contractors and owners, blind of the statute’s mandate, that do not essentially chase the approved forms. Under the agreement of the statute, these non-compliant forms will not defeat a lien.
The authorization to use the approved forms creates a abundant accountability on owners and accepted contractors to ensure that able waivers are used. The statute and the abandonment forms additionally behest potentially adverse after-effects for a contractor, subcontractor or supplier who fails to chase their dictates.
A affirmation abandonment accomplished in one of the forms defined in the statute is bounden aloft a affirmation appellant and is a aegis to a lien, accountable to acquittal in abounding of the bulk declared in the abandonment and release. Thus, the appropriate waivers are, at aboriginal blush, alone accurate if the appellant absolutely gets paid.
However, the statute goes on to ascertain “payment in full” for these purposes as any one of the following: absolute payment, a abstracted accounting acceptance of acquittal by the appellant or the access of 60 canicule from beheading of the abandonment after the recording of a affirmation or an affirmation of nonpayment.
Therefore, alike if not absolutely paid, a subcontractor or supplier may abandon its affirmation rights artlessly by not demography activity aural 60 canicule of signing the waiver. Fortunately, the defined abandonment forms do accommodate a admonishing that the attestant will be “conclusively deemed” paid if the 60-day aeon runs with no affirmation or affirmation actuality filed.
However, this admonishing is generally misunderstood, abandoned or overlooked, consistent in the causeless accident of contrarily accurate affirmation claims.
Whether beheld from the angle of an owner, contractor, subcontractor or supplier, there is abeyant crisis ambuscade in the accurate requirements of Georgia’s affirmation abandonment statute.
Use acute caution.
David H. Johnson is an advocate with McCorkle & Johnson, LLP. Contact him at 912-232-6000 or [email protected]
By David H. Johnson
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