Every state has its own rules and requirements for filing a mechanics lien and other lien-related documents. One unique rule that only applies to Georgia concerns the filing of a document called the Affidavit of Nonpayment.
This guide walks you through the process for filing an Affidavit of Nonpayment in Georgia.
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- What is a Georgia Affidavit of Nonpayment?
- When do you file a Georgia Affidavit of Nonpayment?
- How do you file a Georgia Affidavit of Nonpayment?
- Best practices when filing a Georgia Affidavit of Nonpayment
What is a Georgia Affidavit of Nonpayment?
The Affidavit of Nonpayment is a document that is filed in the county recorder’s office to declare that you have not received your payment after having signed a Georgia lien waiver.
In Georgia, lien waivers start off as conditional lien waivers. This means that these lien waivers are only effective on the condition that the party who signs it actually receives the payment.
Sixty days after a Georgia lien waiver is submitted, the lien waiver automatically turns into an unconditional lien waiver. This means that the waiver will take effect unconditionally on the 60th day, regardless if the party who signs it gets paid or not.
If you received your payment within the 60-day time frame, you can serve an Affidavit of Payment or just let the lien waiver take effect on the 60th day. If you are approaching the 60th day and you still have not gotten your payment, you must file a mechanics lien to recover your payment.
If you do not receive your payment and you do not file a mechanics lien within the 60-day period, you will lose your lien rights. To preserve your lien rights without having to file a mechanics lien within this 60-day timeframe, you can instead file a Notice of Nonpayment in the county recorder’s office.
When do you file a Georgia Affidavit of Nonpayment?
The Notice of Nonpayment must be filed within 60 days after you signed and served a lien waiver in Georgia. It is often filed by construction participants who want to preserve their lien rights after signing a lien waiver without going straight to filing a mechanics lien.
How do you file a Georgia Affidavit of Nonpayment?
Prepare the Georgia Affidavit of Nonpayment
The following details must be included in a Georgia Affidavit of Nonpayment:
- Your name and address
- The name of the party who hired you
- The name of the property owner
- A general description of the services you furnished
- A description of the property location
- The date when the lien waiver was signed
- The amount set in the lien waiver
Georgia also has a statutory form for the Affidavit of Nonpayment, therefore your affidavit must be of the following form:
Note the Affidavit of Nonpayment must be notarized prior to filing. You must sign this form only when you are in the presence of a notary officer.
File the Affidavit of Nonpayment in the county recorder’s office
The Affidavit of Nonpayment must be filed in the county recorder’s office within 60 days of the date the lien waiver was executed. You may file it by mail or you may also visit the recorder’s office and have it filed in person.
Be ready to pay the necessary filing fees when you record an Affidavit of Nonpayment. Call the county recorder’s office to know how much exactly you will need to record an Affidavit of Nonpayment. This is particularly important when you are serving the notice by mail. The parcel must include the exact fees; otherwise, your affidavit will not be recorded.
Serve the Affidavit of Nonpayment on the owner
Part of the filing process for the Affidavit of Nonpayment is serving notice on the property owner that an affidavit has been filed. If you have no direct contract with the general contractor, you must also serve the general contractor a copy of the notice.
Service may be done via registered or certified mail or via statutory overnight delivery. It is a good idea to consult the Notice of Commencement and serve the document on the address written on the NOC.
File an Affidavit of Payment if payment is received
If payment is made in full after you file an Affidavit of Nonpayment, a property owner or another higher tier party may request you to revoke the recorded affidavit. You may cancel the Affidavit of Nonpayment by recording another affidavit declaring that payment has been made.
If payment is not made, you may proceed to file a mechanics lien.
Best practices when filing a Georgia Affidavit of Nonpayment
Use the statutory Affidavit of Nonpayment form
Georgia has a statutory form for the Affidavit of Nonpayment, and it is best to stick with it. Be sure to write all the required details and statements in the right format. You should also verify that the details that you write on the form are correct and accurate by watching out for typographical errors and other minor mistakes.
Remember to notify the property owner upon filing
On the same day that you file a Georgia Affidavit of Nonpayment, you should also serve a notice on the property owner to tell them that you recorded the affidavit. You should also notify the general contractor and all other parties above you in the contracting chain.
File a mechanics lien if necessary
Consider recording a Georgia mechanics lien if you still do not receive payment after filing an Affidavit of Nonpayment. Filing a mechanics lien is still the best tool to recover payment from delinquent clients. Note, however, that the deadline for filing a mechanics lien in Georgia will not get extended regardless if you record an Affidavit of Nonpayment or not.