The Affidavit of Nonpayment in Georgia must be filed within 90 days to retain lien rights if you signed a waiver and didn’t receive payment.
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 applies to claimants who signed a lien waiver and have not received payment.
This guide walks you through the process for filing an Affidavit of Nonpayment in Georgia.
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.
Remember that the deadline of filing a mechanics lien in Georgia is 90 days after your last day of work. The lien waiver and the affidavit of nonpayment do not affect this deadline. So if you sign the lien waiver on the last day of work, and you file an affidavit of nonpayment on the 90th day of the signed lien waiver without filing a lien, you lose lien rights regardless of the affidavit.
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. But this is only up until the 90th day.
Ninety days after a Georgia lien waiver is submitted, the lien waiver automatically turns into an unconditional lien waiver. This means lien rights are immediately void, regardless if the party who signs it gets paid or not.
If you received your payment within the 90-day time frame, you can serve an Affidavit of Payment or just let the lien waiver take effect on the 90th day.
If you do not receive your payment and didn’t file an affidavit of nonpayment, you will lose your lien rights. If the deadline file a lien has passed, you lose your right to file a lien claim regardless of the status of the lien waiver.
Georgia Affidavit of Nonpayment Form
This affidavit is a statutory form, meaning you have to use the standardized format as prescribed in Georgia lien laws. If you’re using a lien management service, make sure they are using a standard template and that they are filing it for you in time. You can get the statutory affidavit template here:
When to file a Georgia Affidavit of Nonpayment
The Notice of Nonpayment must be filed within 90 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 to file a Georgia Affidavit of Nonpayment
After you fill out the Affidavit and have it notarized, these are the steps to follow:
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 90 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. 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
After filing the Affidavit of Nonpayment with the county recorder, you have seven days to serve notice to 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.
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.
If payment is not made, you may proceed to file a mechanics lien.
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