March 8, 2010
Recent decisions of the Georgia Court of Appeals have confirmed the requirement that a valid Notice of Commencement of the construction project must set out the true owner of the property on which the improvements are being made, and that it also must include a legal description of the property being improved. The failure to correctly list the property owner and include a legal description of the property will make the Notice of Commencement invalid, thus relieving a potential remote lien claimant of the requirement to provide a Notice to Contractor to the Owner and Contractor in order to preserve lien rights. In addition, another Georgia Court of Appeals case held that the failure to file the Notice of Commencement within 15 days of physically starting work at the project site will not render the Notice of Commencement invalid, and will not relieve a remote lien claimant from its obligation to serve a Notice to Contractor, if the Notice of Commencement is filed by the time a potential lien claimant must have provided its Notice to Contractor. In other words, a late-filed Notice of Commencement, or a defective Notice of Commencement which is later correctly filed, still may be valid and enforceable as to remote lien claimants who have not supplied labor, material or equipment to the project site at the time of the filing of the proper Notice of Commencement. Although this Georgia Court of Appeals case did not specifically address the consequences of a re-filing of a Notice of Commencement to replace a previously-filed but defective Notice of Commencement, the rationale of the Court would suggest that such a re-filed Notice of Commencement will still be valid as to later-performing sub-subcontractors and suppliers to subcontractors.
For more information, contact Frank Riggs, Contributing Author of the Georgia Chapter at frank.riggs@troutmansanders.com
Frank E. Riggs, Jr., Esquire (Contributing Author)
Troutman Sanders, LLP
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