HB 1288 - Mechanics and materialmen's liens; real estate appraisers
Georgia House of Representatives - 1995/1996 Sessions
HB 1288 - Mechanics and materialmen's liens; real estate appraisers
Page Numbers - 1/ 2/ 3/ 4/ 5/ 6/ 7/ 8
1. Connell 115th
House Comm: Judy / Senate Comm: /
House Vote: Yeas Nays Senate Vote: Yeas Nays
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House Action Senate
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1/12/96 Read 1st Time
1/22/96 Read 2nd Time
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Code Sections amended:
HB 1288 LC 10 1485
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Part 3 of Article 8 of Chapter 14 of Title 44 of
1- 2 the Official Code of Georgia Annotated, relating to liens of
1- 3 mechanics and materialmen, so as to create a special lien
1- 4 for certain appraisers of real estate; to define certain
1- 5 terms; to provide for the property to which such special
1- 6 lien attaches; to provide how such special lien is declared
1- 7 and created; to provide for commencement of actions; to
1- 8 provide procedures and limitations; to provide for
1- 9 dissolution of such a lien; to provide for preliminary
1-10 notice of lien; to provide for filings of preliminary
1-11 notice; to provide for cancellation or expiration of
1-12 preliminary notice of lien; to provide for liens of persons
1-13 without privity of contract; to provide for special liens on
1-14 personalty; to provide for release of lien on filing of
1-15 bond; to provide rights as to liens of partnerships,
1-16 corporations, and associations made up of or employing
1-17 interior designers; to provide that the waiver of lien or
1-18 claim upon bond in advance of furnishing labor, services, or
1-19 materials shall be void; to provide for interim waiver and
1-20 release upon payment; to provide for related matters; to
1-21 repeal conflicting laws; and for other purposes.
1-22 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
1-23 Part 3 of Article 8 of Chapter 14 of Title 44 of the
1-24 Official Code of Georgia Annotated, relating to liens of
1-25 mechanics and materialmen, is amended by striking in its
1-26 entirety Code Section 44-14-360, relating to definitions
1-27 applicable under said part, and inserting in lieu thereof a
1-28 new Code Section 44-14-360 to read as follows:
1-29 "44-14-360. (Index)
1-30 As used in this part, the term:
1-31 (1) 'Appraiser' means the same as the definition of such
1-32 term in paragraph (5) of Code Section 43-39A-2, provided
1-33 that such person holds an appraiser classification under
-1- (Index)
LC 10 1485
2- 1 Chapter 39A of Title 43 or is exempt from such
2- 2 requirement under Code Section 43-39A-24.
2- 3 (1)(2) 'Contractor' means a contractor having privity of
2- 4 contract with the owner of the real estate.
2- 5 (2)(3) 'Land surveyor' means the same as the definition
2- 6 thereof in Code Section 43-15-2.
2- 7 (3)(4) 'Materials,' in addition to including those items
2- 8 for which liens are already permitted under this part,
2- 9 means tools, appliances, machinery, or equipment used in
2-10 making improvements to the real estate, to the extent of
2-11 the reasonable value or the contracted rental price,
2-12 whichever is greater, of such tools, appliances,
2-13 machinery, or equipment.
2-14 (4)(5) 'Materialmen' means all persons furnishing the
2-15 materials, tools, appliances, machinery, or equipment
2-16 included in the definition of materials in paragraph (3)
2-17 (4) of this Code section.
2-18 (5)(6) 'Professional engineer' means the same as the
2-19 definition thereof in Code Section 43-15-2.
2-20 (7) 'Real estate appraisal' means the same as the
2-21 definition of such term in paragraph (2) of Code Section
2-22 43-39A-2, provided that such real estate appraisal is
2-23 performed at the request of the owner of the property or
2-24 at the request of a financial institution pursuant to
2-25 the written authorization of such owner of the property.
2-26 (6)(8) 'Registered forester' means the same as the
2-27 definition of such term in Code Section 12-6-41.
2-28 (7)(9) 'Registered land surveyors' and 'registered
2-29 professional engineers' means land surveyors or
2-30 professional engineers who are registered as land
2-31 surveyors or professional engineers under Chapter 15 of
2-32 Title 43 at the time of performing, rendering, or
2-33 furnishing services protected under this part.
2-34 (8)(10) 'Residential property' means single-family and
2-35 two-family, three-family, and four-family residential
2-36 real estate.
2-37 (9)(11) 'Subcontractor' means, but is not limited to,
2-38 subcontractors having privity of contract with the
2-39 contractor."
-2- (Index)
LC 10 1485
SECTION 2.
3- 1 Said part is further amended by striking in their entirety
3- 2 paragraphs (8) and (9) of subsection (a) of Code Section
3- 3 44-14-361, relating to the creation of special liens on
3- 4 certain property, and inserting in lieu thereof new
3- 5 paragraphs (8), (9), and (10) to read as follows:
3- 6 "(8) All contractors to build railroads; and
3- 7 (9) All suppliers furnishing rental tools, appliances,
3- 8 machinery, or equipment for the improvement of real
3- 9 estate.; and
3-10 (10) All appraisers who perform a real estate appraisal
3-11 on or with respect to any real estate."
SECTION 3.
3-12 Said part is further amended by striking in its entirety
3-13 subsection (a) of Code Section 44-14-361.1, relating to how
3-14 liens are declared and created, and inserting in lieu
3-15 thereof a new subsection (a) to read as follows:
3-16 "(a) To make good the liens specified in paragraphs (1)
3-17 through (8) (10) of subsection (a) of Code Section
3-18 44-14-361, they must be created and declared in accordance
3-19 with the following provisions, and, on failure of any of
3-20 them, the lien shall not be effective or enforceable:
3-21 (1) A substantial compliance by the party claiming the
3-22 lien with his or her contract for building, repairing,
3-23 or improving; for architectural services furnished; for
3-24 real estate appraisal services furnished or performed;
3-25 for registered forester services furnished or performed;
3-26 for registered land surveying or registered professional
3-27 engineering services furnished or performed; or for
3-28 materials or machinery furnished or set up;
3-29 (2) The filing for record of his or her claim of lien
3-30 within three months after the completion of the work,
3-31 the furnishing of the architectural services, the
3-32 furnishing of the real estate appraisal services, or the
3-33 furnishing or performing of such surveying or
3-34 engineering services or within three months after the
3-35 material or machinery is furnished in the office of the
3-36 clerk of the superior court of the county where the
3-37 property is located, which claim shall be in substance
3-38 as follows:
-3- (Index)
LC 10 1485
4- 1 'A.B., a mechanic, contractor, subcontractor,
4- 2 materialman, machinist, manufacturer, registered
4- 3 architect, appraiser, registered forester, registered
4- 4 land surveyor, registered professional engineer, or
4- 5 other person (as the case may be) claims a lien in the
4- 6 amount of (specify the amount claimed) on the house,
4- 7 factory, mill, machinery, or railroad (as the case may
4- 8 be) and the premises or real estate on which it is
4- 9 erected or built, of C.D. (describing the houses,
4-10 premises, real estate, or railroad), for satisfaction
4-11 of a claim which became due on (specify the date the
4-12 claim was due) for building, repairing, improving, or
4-13 furnishing material (or whatever the claim may be).'
4-14 At the time of filing for record of his or her claim of
4-15 lien, the lien claimant shall send a copy of the claim
4-16 of lien by registered or certified mail to the owner of
4-17 the property or the contractor, as the agent of the
4-18 owner;
4-19 (3) The commencement of an action for the recovery of
4-20 the amount of his or her claim within 12 months from the
4-21 time the same shall become due. In addition, within 14
4-22 days after filing such action, the party claiming the
4-23 lien shall file a notice with the clerk of the superior
4-24 court of the county wherein the subject lien was filed.
4-25 The notice shall contain a caption referring to the then
4-26 owner of the property against which the lien was filed
4-27 and referring to a deed or other recorded instrument in
4-28 the chain of title of the affected property. The notice
4-29 shall be executed, under oath, by the party claiming the
4-30 lien or by his or her attorney of record. The notice
4-31 shall identify the court wherein the action is brought;
4-32 the style and number of the action, including the names
4-33 of all parties thereto; the date of the filing of the
4-34 action; and the book and page number of the records of
4-35 the county wherein the subject lien is recorded in the
4-36 same manner in which liens specified in Code Section
4-37 44-14-361 are filed. The clerk of the superior court
4-38 shall enter on the subject lien so referred to the book
4-39 and page on which the notice is recorded and shall index
4-40 such notice in the name of the then purported owner as
4-41 shown by the caption contained in such notice. A
4-42 separate lis pendens notice need not be filed with the
4-43 commencement of this action; and
-4- (Index)
LC 10 1485
5- 1 (4) In the event any contractor or subcontractor
5- 2 procuring material, architect's services, real estate
5- 3 appraiser's services, registered forester's services,
5- 4 registered land surveyor's services, or registered
5- 5 professional engineer's services, labor, or supplies for
5- 6 the building, repairing, or improving of any real
5- 7 estate, building, or other structure shall abscond or
5- 8 die or leave the state within 12 months from the date
5- 9 such services, labor, supplies, or material are
5-10 furnished to him or her, so that personal jurisdiction
5-11 cannot be obtained on the contractor or subcontractor in
5-12 an action for the services, material, labor, or
5-13 supplies, or if the contractor or subcontractor shall be
5-14 adjudicated a bankrupt, or if, after the filing of an
5-15 action, no final judgment can be obtained against him or
5-16 her for the value of such material, services, labor, or
5-17 supplies because of his or her death or adjudication in
5-18 bankruptcy, then and in any of these events, the person
5-19 or persons furnishing material, services, labor, and
5-20 supplies shall be relieved of the necessity of filing an
5-21 action or obtaining judgment against the contractor or
5-22 subcontractor as a prerequisite to enforcing a lien
5-23 against the property improved by the contractor or
5-24 subcontractor. Subject to Code Section 44-14-361, the
5-25 person or persons furnishing material, services, labor,
5-26 and supplies may enforce the lien directly against the
5-27 property so improved in an action against the owner
5-28 thereof, if filed within 12 months from the time the
5-29 lien becomes due, with the judgment rendered in any such
5-30 proceeding to be limited to a judgment in rem against
5-31 the property improved and to impose no personal
5-32 liability upon the owner of the property; provided,
5-33 however, that in such action for recovery, the owner of
5-34 the real estate improved, who has paid the agreed price
5-35 or any part of same, may set up the payment in any
5-36 action brought and prove by competent and relevant
5-37 evidence that the payments were applied as provided by
5-38 law, and no judgment shall be rendered against the
5-39 property improved. Within 14 days after filing such
5-40 action, the party claiming the lien shall file a notice
5-41 with the clerk of the superior court of the county
5-42 wherein the subject lien was filed. The notice shall
5-43 contain a caption referring to the then owner of the
5-44 property against which the lien was filed and referring
5-45 to a deed or other recorded instrument in the chain of
5-46 title of the affected property. The notice shall be
-5- (Index)
LC 10 1485
6- 1 executed, under oath, by the party claiming the lien or
6- 2 by his attorney of record. The notice shall identify
6- 3 the court wherein the action is brought; the style and
6- 4 number of the action, including the names of all parties
6- 5 thereto; the date of the filing of the action; and the
6- 6 book and page number of the records of the county
6- 7 wherein the subject lien is recorded in the same manner
6- 8 in which liens specified in Code Section 44-14-361 are
6- 9 filed. The clerk of the superior court shall enter on
6-10 the subject lien so referred to the book and page on
6-11 which the notice is recorded and shall index such notice
6-12 in the name of the then purported owner as shown by the
6-13 caption contained in such notice. A separate lis
6-14 pendens notice need not be filed with the commencement
6-15 of this action."
SECTION 4.
6-16 Said part is further amended by striking in its entirety
6-17 Code Section 44-14-361.3, relating to preliminary notice of
6-18 lien, and inserting in lieu thereof a new Code Section
6-19 44-14-361.3 to read as follows:
6-20 "44-14-361.3. (Index)
6-21 (a) Prior to filing a claim of lien, a person having a
6-22 lien under paragraphs (1 ) through (8) (10) of subsection
6-23 (a) of Code Section 44-14-361 may at such person's option
6-24 file a preliminary notice of lien rights. The preliminary
6-25 notice of lien rights in order to be effective shall:
6-26 (1) Be filed with the clerk of superior court of the
6-27 county in which the real estate is located within 30
6-28 days after the date a party delivered any materials or
6-29 provided any labor or services for which a lien may be
6-30 claimed;
6-31 (2) State the name, address, and telephone number of the
6-32 potential lien claimant;
6-33 (3) State the name and address of the contractor or
6-34 other person at whose instance the labor, services, or
6-35 materials were furnished;
6-36 (4) State the name of the owner of the real estate and
6-37 include a description sufficient to identify the real
6-38 estate against which the lien is or may be claimed; and
6-39 (5) Include a general description of the labor,
6-40 services, or materials furnished or to be furnished.
-6- (Index)
LC 10 1485
7- 1 (b) A party filing a preliminary notice of lien rights
7- 2 except a contractor shall, within seven days of filing the
7- 3 notice, send by registered or certified mail a copy of the
7- 4 notice to the contractor on the property named in the
7- 5 notice or to the owner of the property. The lien claimant
7- 6 may rely on the building permit issued on the property for
7- 7 the name of the contractor.
7- 8 (c) The clerk of each superior court shall maintain within
7- 9 the records of that office a record separate from all
7-10 other real estate records in which preliminary notices
7-11 specified in subsection (a) of this Code section and
7-12 affidavits specified in subsection (c) of Code Section
7-13 44-14-361.4 shall be filed. Each such notice and
7-14 affidavit shall be indexed under the name of the owner as
7-15 contained in the preliminary notice. The clerk shall
7-16 collect a filing fee of $5.00 for the filing of each
7-17 preliminary notice.
7-18 (d) A person having a lien under paragraphs (1) through
7-19 (8) (10) of subsection (a) of Code Section 44-14-361 may
7-20 enforce the lien without filing a preliminary notice of
7-21 lien."
SECTION 5.
7-22 Said part is further amended by striking in its entirety
7-23 Code Section 44-14-365, relating to rights as to liens of
7-24 partnerships, corporations, and associations made up of or
7-25 employing registered architects, foresters, land surveyors,
7-26 or professional engineers, and inserting in lieu thereof a
7-27 new Code Section 44-14-365 to read as follows:
7-28 "44-14-365. (Index)
7-29 If services are performed or furnished with respect to any
7-30 real estate by any registered architect, appraiser,
7-31 registered forester, registered land surveyor, or
7-32 registered professional engineer who is a member of a
7-33 partnership or who is an agent or employee of a
7-34 corporation or an association and the contract for the
7-35 services is made for or on behalf of the owner with the
7-36 partnership or corporation or association, the
7-37 partnership, corporation, or association shall be entitled
7-38 to all the privileges and benefits of Code Sections
7-39 44-14-361 and 44-14-362, just as if the partnership,
7-40 corporation, or association was a registered architect,
7-41 appraiser, a registered forester, a registered
7-42 professional engineer, or a registered land surveyor."
-7- (Index)
LC 10 1485
SECTION 6.
8- 1 All laws and parts of laws in conflict with this Act are
8- 2 repealed.
-8- (Index)
Office of the Clerk of the House
Robert E. Rivers, Jr., Clerk of the House
Last Updated on 01/02/97