• Under the revised statute, any attempt to waive lien rights in advance of furnishing labor, services or materials is null, void and unenforceable. 
  OCGA § 44-14-366(a).
• Georgia - Affidavit of Non-Payment
   
  
  • New statute 1/1/21:  If a lien waiver is executed and no payment is received, lien rights can be preserved by filing both a Claim of Lien and the filing of a statutory Affidavit of Nonpayment within 90 days of the lien waiver date. OCGA § 44-14-366.

    
    New statue negates the option to file a materialman’s lien instead of an Affidavit of Non-Payment.  There are two deadlines after a lien waiver has been filed.  First, if a materialman’s lien is to be filed, it must be filed within 90 days of the last date of work or delivery of materials.  Second, where a lien waiver was filed the Affidavit of Non-Payment must also be field within 90 days of the date of the lien waiver. 

    The form of the Affidavit of Nonpayment, which must be substantially adhered to, is set out in the new statute. The new form must be in all bold face capital letters in at least 12 point font. OCGA § 44-14-366.

    New statute 1/1/21: The affidavit must be filed within 90 days of the date of the waiver release of lien rights in the county in which the property is located. 

    "Within 7 days of filing the Affidavit of Nonpayment, the filing party must send a copy of the affidavit by registered or certified mail or by statutory overnight delivery to the owner of the property. If the filing party is not in privity of contract with the property owner, and if a Notice of Commencement has been filed, a copy of the Affidavit of Nonpayment also must be sent to the contractor at the address shown in the Notice of Commencement." -OCGA § 44-14-366 of the Georgia Statute.
    
    These service requirements, which became effective March 31, 2009, also must be set out in the Affidavit of Nonpayment form. OCGA § 44-14-366 (2008). 
    
    In attempting to comply with the requirements of the Affidavit of Nonpayment form, the lien claimant is entitled to rely upon any information set out in the previously executed waiver and release form. OCGA § 44-14-366(f)(6). 
    
    If paid following the filing of an Affidavit of Nonpayment, the lien claimant is obligated, upon request, to execute in recordable form an affidavit swearing that payment in full has been received. When the affidavit is recorded in the county in which the Affidavit of Nonpayment was filed, the Affidavit of Nonpayment is deemed void. OCGA § 44-14-366(f)(3).
  • Pay-if-paid clauses does not waive any lien rights.
  • The statute provides a mandatory form, which must be followed in obtaining waivers and releases in exchange for payments other than final payments.
  • “Paid if Paid” is enforced if explicit.
  • “Pay when Paid” suggests time for payment.
  • Pay-when-paid clause in the subcontract or purchase order does create a condition precedent to payment.

Retainage Provisions

Public

• GA. CODE ANN. §§13-10-80(b)(2)(A).  Retainage to a maximum of 10 percent of each progress payment; provided, however, when 50 percent of the contract value including change orders and other additions to the contract value provided for by the contract documents is due and the manner of completion of the contract work and its progress are reasonably satisfactory to the owner´s authorized contract representative, the owner shall withhold no more retainage. At the discretion of the owner and with the approval of the contractor, the retainage of each subcontractor may be released separately as the subcontractor completes his or her work.  At substantial completion, the public entity shall release the retainage within 30 days after receiving the contractor's invoice. The owner may withhold an amount equal to 200 percent of the value of each incomplete item, to be released upon the completion of each item. GA. CODE ANN. §§13-10-80(b)(2)(C).  A subcontractor is entitled to the same percentage of retainage as the contractor. If the contractor's retainage is reduced or if the contractor receives full payment of the withheld amount, it must reduce the subcontractor's retention, but only if 50 percent of the subcontractor's work has been completed. GA. CODE ANN. §§13-10-80(b)(2)(C).