Back in September 2019, in ALA Constr. Servs., LLC v. Controlled Access, Inc., No. A19A0923, 2019 WL 4463305 (Ga. Ct. App. Sept. 18, 2019), the Georgia Court of Appeals ruled that a subcontractor's failure to timely file an affidavit of non-payment or claim of lien within the statutory 60 day period defeated not just the subcontractor's lien claim for the underlying debt, but also the subcontractor's breach of contract claims. The ruling meant that a subcontractor would be found to be "paid in full" without any right to payment if an affidavit of nonpayment or claim of lien was not recorded within 60 days of signing a lien waiver. Changes to Georgia's lien law effective January 1 correct this expanded interpretation of O.C.G.A. § 44-14-366.
The new law amends O.C.G.A. § 44-14-366 to specifically clarify that a subcontractor's failure to timely record an affidavit of nonpayment or claim of lien "shall not be deemed to affect any other rights or remedies of the claimant." This means that a subcontractor's contractual right to payment will not be impacted if the subcontractor does not record an affidavit of nonpayment or claim of lien within the statutory period after signing a lien waiver form under O.C.G.A. § 44-14-366.
In addition to clarifying that a subcontractor's contractual rights to payment will not be impacted under the lien law provisions, the new law also extends the statutory period for recording an affidavit of nonpayment or claim of lien from 60 to 90 days. In addition, it provides new and updated statutory lien waiver and affidavit of nonpayment forms to be used by GA subcontractors going forward.
Georgia subcontractors should use the updated statutory lien waiver and affidavit of nonpayment language pursuant to the amended O.C.G.A. § 44-14-366. We have drafted useable versions of the updated statutory forms. The updated Affidavit of Nonpayment can be found here. The updated Interim Waiver form is here, and the updated Final Waiver form is here.
