There's not just one type of real estate lien in Georgia, but many. They all mean the same essential thing, however: Someone is claiming that the property owner owes them money. It might be the taxing authority, who says that back taxes are owned. It could be a contractor who claims to have done work on the property without getting paid. It could also be anyone who took the property owner to court and recovered a money judgment.
Under Georgia state law, there are particular procedures set up that must be used to file a lien. It's important to get the procedure right to be sure that the lien will be valid.
What Is a Property Lien?
In Georgia, as in most states, a property lien is an official claim or encumbrance against a property owner for payment of a debt. The person or entity owed money files the claim of lien in the Georgia recorder's office where deeds are filed. The homeowner cannot sell or refinance their home unless and until the lien is either adjudicated in court or paid off.
The three primary types of liens filed against property in Georgia are: tax liens, mechanic's liens and judgment liens. A tax lien is filed by a taxing authority if the property owner fails to pay property taxes.
A mechanic's lien is filed by someone who contributes labor or supplies materials to improve a new or existing home and doesn't get paid. In Georgia, these are also called materialman's liens. A judgment lien is filed by a person who has taken the property owner to court and won a money judgment that hasn't yet been paid.
Why File a Lien?
A lien is much more than a nudge to the debtor to remind them of the outstanding amount due. It is a legal document that secures the claim against the homeowner with a security interest in the property. That is, a property lien gives the lien holder the right to sell the property in order to recover the amount of money they are owed. Since this is not practical for small lien holders, it is perhaps more important that property liens prevent the property holder from selling or refinancing a property until the lien is satisfied or paid off.
For example, if a property owner is trying to sell their home, the seller's title company will search the title record for liens. If liens are present, the mortgage company puts a brake on the transaction. While a seller might pay off a small lien in order to speed up the sale, they are not obligated to do so in Georgia and are not likely to pay off a large lien. What that means is that, by placing a lien on a property, the creditor is very likely to have the debt paid sometime down the road.
Filing a Georgia Mechanic's Lien
Anyone who provides services or materials to build or fix up a house in Georgia has the right to file a mechanic's lien if they have not been paid. This includes contractors, subcontractors, materialmen, laborers, machinists or even a company that rents equipment to a contractor or subcontractor. Note that the Georgia code limits mechanic's lien protection to those who have all of the requisite licenses. Unlicensed contractors or workers cannot file mechanic's liens.
Before filing a lien in Georgia, it may be necessary to give the owner preliminary notice. This is mandatory only when the property owner filed a Notice of Commencement on the building project and the person doing work or supplying material contracted with someone other than the owner of the property, like a contractor or subcontractor.
If these two conditions have been met, the person doing the work or supplying the material must send a preliminary notice within 30 days of when they begin work or within 30 days of the date the owner files the Notice of Commencement.
Procedure for Mechanic's Lien
A person filing a Georgia mechanic's lien has a short time frame in which to complete the initial steps. The lien must be filed within 90 days of the date the services or materials were provided. Within two business days from the date of filing the lien, the person filing it must send a copy to the property owner by registered or certified mail or overnight delivery. They then have one year (365 days) to file an action to enforce the lien. The lien claimant must file another notice – a commencement of lien action notice – within 30 days after filing the legal action.
It's critical to use the right forms and include the requisite info. The bad news is that Georgia has 159 counties, and each county has its own recording offices, procedures and filing fees. Contact the superior court of the county where the property is located and ask for forms and instructions. Once the form is filled in, ask the court to file it.
Georgia Lien Law
In order to get a judgment lien filed on real property in Georgia, it is necessary to first win a court judgment against a Georgia property owner. The lawsuit doesn't need to concern the property itself as long as the judgment includes money damages. Judgment liens are intended to help those who win money judgments in court get paid, and they can attach to property or real estate. A Georgia judgment property lien remains attached for seven years.
To attach a judgment lien to real estate, the creditor must record the judgment itself with the superior court in the county in Georgia where the debtor owns property. That property can be raw land, a home or business real estate.
It's also a good idea to file the lien in any county in which the debtor is likely to own real estate in the future. The lien attaches to the property's title and is a public record that provides notice to the public that the property owner owes money. When the property is sold or refinanced with a new lender, the judgment lien will be paid from the proceeds in order to give the buyer clear title.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.