GA Code § 44-14-320 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens|Article 8 - Liens|Part 1 - In General|§ 44-14-320. Certain Liens Established; Removal of Nonconforming Liens

  The following liens are established in this state:   Liens for taxes in favor of the state, the counties, and the municipal corporations;   Liens in favor of creditors by judgment and decree;   Liens in favor of laborers;   Liens in favor of landlords;   Liens in favor of mortgagees;   Liens in favor of landlords furnishing supplies;   Liens in favor of mechanics on real and personal property;   Liens in favor of contractors, materialmen, subcontractors, materialmen furnishing material to subcontractors, and laborers furnishing labor to subcontractors, machinists, and manufacturers of machinery. As used in this paragraph, the term "subcontractor" includes, but is not limited to, subcontractors having privity of contract with the prime contractor;   Liens in favor of certain creditors against steamboats and other watercraft;   Liens in favor of the proprietors of sawmills and the proprietors of planing mills and other similar establishments;   Liens in favor of innkeepers, boardinghouse keepers, carriers, livery stable keepers, pawnbrokers, depositories, bailees, factors, acceptors, and attorneys at law;   Liens in favor of owners of stallions, jacks, bulls, and boars;   Liens in favor of railroad employees, owners of stock killed, and persons furnishing supplies to railroads;   Liens in favor of laundrymen;   Liens in favor of jewelers;   Liens in favor of the state for expenditures from the hazardous waste trust fund pursuant to subsection (e) of Code Section 12-8-96. Such liens shall be superior to all other liens except liens for taxes and other prior perfected recorded liens or claims of record; and   Liens in favor of a nonprofit organization or entity that is exempt from taxation under 26 U.S.C. Section 501(c) which exercises the powers of a fire department as provided for under Chapter 3 of Title 25 that are requested by property owners and that are based upon fees and rates charged that are consistent with the Federal Emergency Management Agency of the United States Department of Homeland Security's Schedule of Equipment Rates as such existed on July 1, 2019.       All liens provided for in this chapter or specifically established by federal or state statute, county, municipal, or consolidated government ordinance or specifically established in a written declaration or covenant which runs with the land shall be exempt from subsection (c) of this Code section. All other liens shall be defined as nonconforming liens and shall not be eligible for filing and recording.   Each nonconforming lien shall be a nullity with no force or effect whatsoever, even if said nonconforming lien is filed, recorded, and indexed in the land records of one or more counties in this state.       Any person, corporation, or other entity against whose property a nonconforming lien is filed or recorded may, without notice to any party, file an ex parte petition for an order to remove a nonconforming lien from the record in the superior court of the county in which said lien is filed or recorded and obtain an order from said superior court directing the clerk of the superior court to record the order and mark the recorded nonconforming lien: "CANCELED OF RECORD PURSUANT TO ORDER DATED ________, RECORDED AT DEED BOOK ____, PAGE ____. THIS ________ DAY OF ________________________, ________." The petition shall set forth that:   The movant is a party against whose property a nonconforming lien is filed;   The lien in question is a nonconforming lien as defined under this Code section; and   A certified copy of the nonconforming lien is attached as an exhibit.  The petition must be executed by the movant or movant's attorney. The order may be entered as early as the date of filing of the petition and shall set forth that, upon review of the petition and the certified copy of the recorded instrument attached thereto, it is the order of the court that said lien is a nonconforming lien under this Code section and that the clerk of the court is ordered to record the order and mark the nonconforming lien canceled of record.      Any official or employee of the government of this state or any branch thereof, any political subdivision of this state, or the government of the United States or any branch thereof against whose property a nonconforming lien is filed or recorded may, without notice to any party and in lieu of the procedure provided by paragraph (1) of this subsection, file an ex parte affidavit of nonconforming lien in the superior court of the county in which said lien is filed or recorded. The affidavit shall set forth that:   Such person against whose property a nonconforming lien is filed is an official or employee of the government of this state or a branch thereof, a political subdivision of this state, or the government of the United States or a branch thereof;   The lien in question is a nonconforming lien as defined under this Code section and was filed against the government official or employee based upon the performance or nonperformance of his or her official duties; and   A certified copy of the nonconforming lien is attached as an exhibit.  The affidavit filed for such government official or employee must be executed by the Attorney General or a deputy or assistant attorney general in the case of an official or employee of the government of this state or a branch thereof, the attorney representing a political subdivision of this state in the case of an official or employee of such political subdivision, or a United States attorney or an assistant United States attorney in the case of an official or employee of the government of the United States or a branch thereof. The lien shall be conclusively presumed to be nonconforming upon the filing of such affidavit, and the clerk of the court shall instanter mark the recorded nonconforming lien: "CANCELED OF RECORD PURSUANT TO AFFIDAVIT DATED ________, RECORDED AT DEED BOOK ____, PAGE ____. THIS ________ DAY OF ________________________, ________."         (Ga. L. 1873, p. 42, § 1; Code 1873, § 1972; Code 1882, § 1972; Civil Code 1895, § 2787; Ga. L. 1909, p. 151, § 1; Civil Code 1910, § 3329; Code 1933, § 67-1701; Ga. L. 1956, p. 562, § 1; Ga. L. 1997, p. 970, § 2; Ga. L. 1997, p. 1050, § 3; Ga. L. 1999, p. 81, § 44; Ga. L. 2000, p. 1487, § 1; Ga. L. 2019, p. 294, § 1/HB 387.)    The 2000 amendment,  effective May 1, 2000, in subsection (b), added the paragraph designations, in paragraph (1), in the first sentence, inserted a comma following "municipal", and deleted a comma following "ordinance", and added "and shall not be eligible for filing and recording" in the second sentence, and, in paragraph (2), inserted "a" preceding "nullity", substituted ", even if" for "even though", and deleted "duly" preceding "filed,"; and, in subsection (c), designated the former undesignated language as paragraph (1), redesignated former paragraphs (1) through (3) as present subparagraphs (c)(1)(A) through (c)(1)(C), respectively, and added paragraph (2).    The 2019 amendment,  effective July 1, 2019, deleted "and" at the end of paragraph (a)(15), substituted "; and" for the period at the end of paragraph (a)(16), and added paragraph (a)(17).   Cross references.   - Liens for attorneys' services, §§ 15-19-14,15-19-15.    Child support liens in favor of Department of Human Resources, § 19-11-18.    Liens of innkeepers on property of guests, § 43-21-5 et seq.    Holding of liens on one's own property, § 44-6-3.    Tax liens, § 48-5-28.   Law reviews.   - For article, "The Rights of Attorneys and Their Clients in Fee Disputes," see 16 Ga. St. B.J. 150 (1980).   JUDICIAL DECISIONS   Real property liens strictly construed.    - One seeking to make good a lien on real property must be brought clearly within the law relating thereto, and because such liens are creatures of statute and strictly construed, they may not be extended to cover instances not clearly and plainly provided for thereby. Stephens v. Clark, 154 Ga. App. 306, 268 S.E.2d 361 (1980).   Definition of "liens for taxes."    - The words "liens for taxes," as employed in O.C.G.A. § 44-14-320, are broad and sufficient to include taxes provided by subsequent statute, for support of the state and counties and municipal corporations located in the state that are not ad valorem or based on property. Atlanta Trust Co. v. Atlanta Realty Corp., 177 Ga. 581, 170 S.E. 791 (1933).   Tax liens are highest priority and apply to bona fide buyers.    - Liens for state, county, and municipal taxes are superior to all other liens, and such lien follows the property into the hands of bona fide purchasers. Carroll v. Richards, 50 Ga. App. 272, 178 S.E. 178 (1934).   Unless lien not recorded when purchaser buys.    - Recording the fi. fa. issued by the State Revenue Commissioner on the general execution docket is not a condition precedent to the lien for sales taxes attaching, and the only effect of a failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147, 82 S.E.2d 145 (1954).   Priority of perfected security interest.    - Under former O.C.G.A. § 11-9-310 (see now O.C.G.A. § 11-9-333), a perfected security interest takes priority over all liens described in O.C.G.A. § 44-14-320, including mechanic's lien as provided for in O.C.G.A. § 44-14-363. Newton Ford Tractor Co. v. JI Case Credit Corp., 163 Ga. App. 497, 294 S.E.2d 723 (1982).   Priority of liens.    - Judgment creditor's lien did not have priority over an assignee's security deed because the funds from the assignor's loan were used to pay off a bank's prior security deed and, thus, the assignee was able to step into the shoes of the bank, a senior creditor, as to the priority of the creditor's lien; O.C.G.A. § 44-14-320(a) only listed the liens established in Georgia without listing the liens in order of priority. Hayes v. EMC Mortg. Corp., 296 Ga. App. 709, 675 S.E.2d 594 (2009).   Interest in tort action.    - Although a court had earlier rejected a debtor's reliance on O.C.G.A. § 44-12-24 in seeking a ruling that the assignment of a tort action was invalid because the debtor had assigned the future proceeds of the action, not the right of action, the assignee creditor's default allowed the court to accept the debtor's assertion that the assignment of the proceeds to be received in the future was not a valid, enforceable assignment under Georgia law; in addition, the creditor had no lien or perfected security interest in the proceeds under O.C.G.A. § 44-14-320; thus, because there was no valid assignment and because the creditor did not have a valid, perfected security interest under Georgia law, then the creditor was an unsecured creditor with only a claim based on the debtor's breach of her promise to pay. Carson v. Rhodes (In re Carson), Bankr. (Bankr. N.D. Ga. June 12, 2006).   When tax lien attaches.    - A lien and its rank is provided for the state for sales and use taxes; and such lien attaches on the day on which the dealer is required to make the return and remittance to the State Revenue Commissioner; and such lien for taxes are declared to be superior to all other liens. State v. Atlanta Provision Co., 90 Ga. App. 147, 82 S.E.2d 145 (1954).   If receiver pays proceeds of sale to deed holder, both become liable for tax on sale.    - Where certain tax executions are declared to be valid prior liens upon property or funds arising from the sale of such property, and a receiver appointed by the superior court, notwithstanding the order of that court required payment of taxes, pays out all or part of such funds to the holder of a deed to secure a debt, the holder is thereby rendered liable with holder's surety for the payment of such tax executions, and is subject to action by the holder of the executions. Belser v. Puckett, 179 Ga. 249, 175 S.E. 565 (1934).   No right to excess funds generated by tax sale.    - Redeeming creditor of a tax-sale property does not have a priority lien against excess funds arising from that sale. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131, 800 S.E.2d 362 (2017).    In Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (2006) and again in United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (2010), the Georgia Court of Appeals held that a creditor who redeems property following a tax sale has first priority to excess funds resulting from that tax sale, but properly overruled those decisions in DLT List, LLC. v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318 (2015) concluding that a redeeming creditor has no such priority. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131, 800 S.E.2d 362 (2017).   Laborer's lien supersedes landlord's.    - Although a laborer's general lien arose subsequent to a landlord's lien, the laborer's lien is nevertheless superior in dignity to the landlord's lien. Little v. Walters, 40 Ga. App. 447, 150 S.E. 201 (1929).    As a general rule, party cannot hold lien on own property. Stephens v. Clark, 154 Ga. App. 306, 268 S.E.2d 361 (1980).   Partner has no right to materialman or contractor's lien on property.    - A coequal partner does not have a right to a common-law materialman's or contractor's lien on the partnership property. Stephens v. Clark, 154 Ga. App. 306, 268 S.E.2d 361 (1980).   Materialman who supplies subcontractor has no lien on property.    - A materialman who furnishes material to a subcontractor for the improvement of real estate is not entitled to a lien upon the property so improved, where the subcontractor has no contractual relation with the owner of the realty. Buffalo Forge Co. v. Southern Ry., 43 Ga. App. 445, 159 S.E. 301 (1931).   Subrogation agreement overcomes constructive notice of intervening lien.    - An agreement for subrogation, made with either the debtor or the creditor, is sufficient to overcome constructive notice of the intervening lien. McCollum v. Lark, 187 Ga. 292, 200 S.E. 276 (1938).   Lender who pays off realty encumbrance gets priority in repayment.    - One who advances money to pay off an encumbrance upon realty at the instance either of the owner of the property or the holder of the encumbrance, either upon the understanding, or where an understanding will be implied that the advance is to be secured by a first lien on the property, is not a mere volunteer. In the event the new security is not a first lien on the property, the holder of the security, if not chargeable with culpable or inexcusable neglect, will be subrogated to the rights of the prior encumbrancer under the security held by the encumbrancer, unless the superior or equal equity of others would be prejudiced (knowledge of an intervening encumbrance not alone preventing the person advancing the money from claiming the right of subrogation, when the exercise of such right will not substantially prejudice the rights of the intervening encumbrancer). Equity will set aside a cancellation of such security and revive the same for the last encumbrancer's benefit. McCollum v. Lark, 187 Ga. 292, 200 S.E. 276 (1938).   Homeowners association as judgment creditor entitled to file a lien.    - Because a judgment debtor's personal property was automatically bound by a judgment as of the date a state court judgment was rendered, O.C.G.A. §§ 9-12-80 and44-14-320(a)(2), a homeowners' association became a judgment creditor of the homeowners upon the entry of a state court judgment and was entitled to file a lien binding the homeowners' property. Laosebikan v. Lakemont Cmty. Ass'n, 302 Ga. App. 220, 690 S.E.2d 505 (2010).   Enforcement of lien if no prejudice to rights of intervening lienor.    - Where a lender, pursuant to a contract with the debtor, in which the debtor attempts to convey to the lender a first lien upon realty, and agrees that the lender shall be subrogated to the rights of any creditor whose lien the lender discharges, discharges a lien superior to the conveyance from the debtor, with only constructive notice of another lien of record, the lender is subrogated to the creditor whose lien the lender discharges, and may revive the lien and enforce the same against the property when to do so would not prejudice the rights of the intervening lienor who had done nothing to change his position in reliance upon the cancellation of the lien paid. McCollum v. Lark, 187 Ga. 292, 200 S.E. 276 (1938).   When subrogation arises.    - Subrogation will arise only in those cases where the party claiming it advanced the money to pay a debt which, in the event of default by the debtor, he would be bound to pay, or where he has some interest to protect, or where he advanced the money under an agreement, express or implied, made either with the debtor or creditor, that he would be subrogated to the rights and remedies of the creditor. McCollum v. Lark, 187 Ga. 292, 200 S.E. 276 (1938).   Assignment of liens in writing.    - Liens mentioned in O.C.G.A. § 44-14-320 are within O.C.G.A. § 44-14-324, requiring assignments to be in writing. Planters' Bank v. Prater, 64 Ga. 609 (1880).   Stableman's lien inapplicable to defendant after executing replevy bond.    - Where the person to whom levying officer had delivered mules, who had incurred the expenses of their upkeep, foreclosed upon the mules a livery stableman's lien for their upkeep from the time the possession of the mules was tendered to the defendant after that person executed a replevy bond, a verdict for the defendant was as a matter of law demanded. Rogers v. Echols, 50 Ga. App. 711, 179 S.E. 131 (1935).   Insufficient evidence to determine if there was assignment or lien.    - Debtor's motion for default judgment, in an action for a declaration that the assignment of proceeds from a lawsuit to a defendant was invalid, was denied because the debtor did not assign a right of action, so O.C.G.A. § 44-12-24 did not apply, and there was no allegation that the defendant had a lien and if so, whether it was unperfected, so O.C.G.A. § 44-14-320 did not apply. Carson v. Rhodes (In re Carson), Bankr. (Bankr. N.D. Ga. Nov. 9, 2005).    Cited in Jones v. Darby, 174 Ga. 71, 161 S.E. 835 (1931); Lakewood Lumber & Supply Co. v. Hughes, 176 Ga. 239, 167 S.E. 518 (1933); State Revenue Comm'n v. Rich, 49 Ga. App. 271, 175 S.E. 394 (1934); Davison v. F.W. Woolworth Co., 186 Ga. 663, 198 S.E. 738 (1938); Lankford v. Holton, 187 Ga. 94, 200 S.E. 243 (1938); McCollum v. Lark, 187 Ga. 292, 200 S.E. 276 (1938); J.B. Withers Cigar Co. v. Kirkpatrick, 196 Ga. 41, 26 S.E.2d 255 (1943); Amoco Oil Co. v. G. Sims & Assocs., 162 Ga. App. 307, 291 S.E.2d 128 (1982); Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 26 Bankr. 394 (Bankr. N.D. Ga. 1983); Sterling Nat'l Bank & Trust Co. v. Southwire Co., 713 F.2d 684 (11th Cir. 1983).   RESEARCH REFERENCES   Am. Jur. 2d.   - 51 Am. Jur. 2d, Liens, §§ 52, 53.   C.J.S.   - 53 C.J.S., Liens, § 9.   ALR.    - Periodical use of vehicle or horse by owner as defeating lien for storage, repairs, or board, 3 A.L.R. 664.    Common-law lien on personalty for work performed thereon, upon the owner's premises, 3 A.L.R. 862.    Priority as between judgment lien and unrecorded mortgage, 4 A.L.R. 434.    Validity and effect of provision in contract against mechanic's lien, 13 A.L.R. 1065; 102 A.L.R. 356; 76 A.L.R.2d 1087.    Power of the state to create and enforce liens on ships for a nonmaritime tort, 20 A.L.R. 1095.    Discharge of mortgage and taking back of new mortgage as affecting lien intervening between the old and new mortgage, 33 A.L.R. 149; 98 A.L.R. 843.    Mechanics' lien for material specially fabricated for and adapted to building, but not used therein, 33 A.L.R. 320.    Substitution by court of security for attorney's lien, 33 A.L.R. 1296.    Priority as between judgment entered and deed or mortgage filed on same day, 37 A.L.R. 268.    Mechanic's lien: owner's right to deduction on account of damages sustained through contractor's delay, 37 A.L.R. 766.    Independence of contract considered with relation to the scope and construction of statutes, 43 A.L.R. 335.    Bankruptcy: lessor's right, upon bankruptcy of lessee, to enforce lien or retain security for future rentals, 45 A.L.R. 717.    Destruction, demolition, removal of, or damage to improvement as affecting mechanic's lien, 74 A.L.R. 428.    Lien of mortgage securing corporate bonds as affected by exchange of bonds for those of reorganized or new corporations, 81 A.L.R. 139.    Lien on vendee's or optionee's interest in respect of real property as attaching to title acquired by completion of contract or exercise of option, 85 A.L.R. 927.    Vendor's or vendee's lien against realty in case of combined sale of realty and personalty, 88 A.L.R. 92.    State's prerogative right of preference at common law, 90 A.L.R. 184; 167 A.L.R. 640.    Different classes of "vendors' liens," so-called, upon real property, 91 A.L.R. 148.    Mortgagee's release of mortgagor's personal liability by dealings with purchaser of part of mortgaged property who had assumed mortgage debt as affecting lien of mortgage upon other part which has been conveyed by mortgagor to third person, 101 A.L.R. 618.    Remedy available to holder of mechanic's lien which has priority over antecedent mortgage or vendor's title or lien as regards improvement, but not as regards land, where it is impossible or impractical to remove the improvement, 107 A.L.R. 1012.    Means of enforcing or making effective attorney's retaining lien, 111 A.L.R. 487.    Claim of lessor or privy against receiver of lessee in respect of leasehold which latter elects not to take over, 111 A.L.R. 556.    Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 111 A.L.R. 1453; 142 A.L.R. 362.    Statute relating to attorney's lien as affecting common-law or equitable lien, 120 A.L.R. 1243.    Constitutionality of statute impairing or postponing lien for taxes, 136 A.L.R. 328.    Who is contractor or subcontractor, as distinguished from materialman, for purposes of mechanic's lien, contractor's bond, or other provision for securing compensation under construction contract, 141 A.L.R. 321.    Terms of attorney's contingent-fee contract as creating an equitable lien in his favor, 143 A.L.R. 204.    Respective rights and estates of persons claiming real property through sales from different agencies to enforce taxes or assessments, as between which there is parity of lien, 167 A.L.R. 1001.    Right of attorney to set off claim for unrelated services against client's claim for money collected, 173 A.L.R. 429.    Attorney's right to lien or equitable assignment in respect of client's share or interest in decedent's estate, or in trust, 175 A.L.R. 1132.   Lien for storage of motor vehicle, 48 A.L.R.2d 894; 85 A.L.R.3d 199.   Validity of statute making private property owner liable to contractor's laborers, materialmen, or subcontractors where owner fails to exact bond or employ other means of securing their payment, 59 A.L.R.2d 885.   Interest and penalties on federal tax covered in part by prebankruptcy liens as allowable or as surviving discharge in bankruptcy, 77 A.L.R.2d 1125.   Time for filing notice or claim of mechanic's lien where claimant has contracted with general contractor and later contracts directly with owner, 78 A.L.R.2d 1165.   Mechanic's lien for services in connection with subdividing land, 87 A.L.R.2d 1004.   What constitutes "commencement of building or improvement" for purposes of determining accrual of mechanic's lien, 1 A.L.R.3d 822.   Charge for use of machinery, tools, or appliances used in construction as basis for mechanic's lien, 3 A.L.R.3d 573.   Mechanic's lien based on contract with vendor pending executory contract for sale of property as affecting purchaser's interest, 50 A.L.R.3d 944.   Abandonment of construction or of contract as affecting time for filing mechanics' liens or time for giving notice to owner, 52 A.L.R.3d 797.   Assertion of statutory mechanic's or materialman's lien against oil and gas produced or against proceeds attributable to oil and gas sold, 59 A.L.R.3d 278.   Building and construction contracts: right of subcontractor who has dealt only with primary contractor to recover against property owner in quasi contract, 62 A.L.R.3d 288.   Enforceability of mechanic's lien attached to leasehold estate against landlord's fee, 74 A.L.R.3d 330.   Removal or demolition of building or other structure as basis for mechanic's lien, 74 A.L.R.3d 386.   Release or waiver of mechanic's lien by general contractor as affecting rights of subcontractor or materialman, 75 A.L.R.3d 505.   Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.   Priority between attorney's lien for fees against a judgment and lien of creditor against same judgment, 34 A.L.R.4th 665.   Loss of garageman's lien on repaired vehicle by owner's use of vehicle, 74 A.L.R.4th 90.   Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.   Discharge of mortgage and taking back of new mortgage as affecting lien intervening between old and new mortgages, 43 A.L.R.5th 519.