Filing Affidavit of Non-Payment Within 60 Days of Signing Statutory Lien Waiver is Critical in Georgia Construction Contracts

Miller & Martin PLLC Blog | November 25, 2019

Author: Neil Wilcove

This fall the Georgia Court of Appeals ruled against a subcontractor who failed to file an affidavit of non-payment or a claim of lien within sixty (60) days of signing a statutory lien waiver. In ALA Construction Services, LLC v. Controlled Access, Inc. 833 S.E.2d 570 (2019), Controlled Access, in the normal course of business, signed an interim statutory lien waiver in accordance with O.C.G.A. § 44-14-366. Controlled Access was not paid. Controlled Access did not file an affidavit of non-payment or a claim of lien within 60 days of submitting its statutory lien waiver.     

In reversing the trial court order’s granting judgment in favor of Controlled Access, the Court of Appeals ruled that pursuant to the language contained in the lien law statutes, one is conclusively deemed to be paid in full if the party fails to file an affidavit of non-payment or a claim of lien within the 60 days of submitting the statutory lien waiver. Thus, the rights of the party to collect any amounts owed pursuant to the submitted lien waiver are extinguished, even contractual rights.  

If you sign a statutory lien waiver in Georgia, please remember to calendar the 60-day deadline for filing an affidavit of non-payment or claim of lien. While some have argued that this opinion is a departure from the law, it must be noted that the Court of Appeals followed the language contained in the statute.  It may not be a fair result in the end and it may not be what the legislature ultimately intended, but the opinion certainly is in line with what the statute says.       

For more information about Construction contracts, contact attorney Neil Wilcove or any member of our Construction practice.

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