GA Code § 44-14-366 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens|Article 8 - Liens|Part 3 - Mechanics and Materialmen|§ 44-14-366. Waiver of Lien or Claim Upon Bond in Advance of Furnishing Labor, Services, or Materials Void; Interim Waiver and Release Upon Payment; Unconditional Waiver and Release Upon Final Payment; Affidavit of Nonpayment

  Waivers and releases provided for under this Code section shall be limited to waivers and releases of lien and labor or material bond rights and shall not be deemed to affect any other rights or remedies of the claimant.   A right to claim a lien or to claim upon a bond may not be waived in advance of furnishing of labor, services, or materials. Any purported waiver or release of lien or bond claim or of this Code section executed or made in advance of furnishing of labor, services, or materials is null, void, and unenforceable.   No oral or written statement by the claimant purporting to waive, release, impair, or otherwise adversely affect a lien or bond claim is enforceable or creates an estoppel or impairment of claim of lien or claim upon a bond unless:   It is pursuant to a waiver and release form duly executed by the claimant prescribed below; and   The claimant has received payment for the claim as set forth in subsection (g) of this Code section.   A claimant who is paid, in full, the amount set forth in the waiver and release form after filing an affidavit of nonpayment shall upon request execute in recordable form an affidavit swearing that payment in full has been received. Upon recordation thereof in the county in which the Affidavit of Nonpayment was recorded, the affidavit of nonpayment to which it relates shall be deemed void.   Nothing in this Code section shall shorten the time within which to file a claim of lien.   A waiver and release provided in this Code section shall be suspended upon filing of an affidavit of nonpayment until payment in full has been received.   The claimant may rely upon the information contained in the waiver and release form when completing for filing the affidavit of nonpayment.      (d) When a claimant is requested to execute a waiver and release in exchange for or in order to induce payment other than final payment, the waiver and release shall substantially follow the language of the following form, be in at least 12 point font, and need not be in boldface capital letters, and the priority of such claimant's lien rights, except as to retention, shall upon such payment thereafter run from the day after the date specified in such Waiver and Release of Lien and Payment Bond Rights Upon Interim Payment form:   "WAIVER AND RELEASE OF LIEN   AND PAYMENT BOND RIGHTS   UPON INTERIM PAYMENT    STATE OF GEORGIA COUNTY OF ______________ THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY ____________________________ (NAME OF CONTRACTOR) TO FURNISH ____________________________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS ____________________________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF __________________, COUNTY OF __________________, AND IS OWNED BY ____________________________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: __________________________________________________________________________ ___________________________________________________________________________ __________________________________________________________________________ (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.) UPON THE RECEIPT OF THE SUM OF $____________, THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND THROUGH THE DATE OF ____________ (DATE) AND EXCEPTING THOSE RIGHTS AND LIENS THAT THE MECHANIC AND/OR MATERIALMAN MIGHT HAVE IN ANY RETAINED AMOUNTS, ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID BUILDING OR PREMISES. GIVEN UNDER HAND AND SEAL THIS ________ DAY OF ________________________, ________. __________________________________________________________ (SEAL) __________________________________________________________________ ________________________ (WITNESS) ________________________ (ADDRESS) NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE WAIVED AND RELEASED ANY AND ALL LIENS AND CLAIMS OF LIENS UPON THE FOREGOING DESCRIBED PROPERTY AND ANY RIGHTS REGARDING ANY LABOR OR MATERIAL BOND REGARDING THE SAID PROPERTY TO THE EXTENT (AND ONLY TO THE EXTENT) SET FORTH ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 90 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE AN AFFIDAVIT OF NONPAYMENT PRIOR TO THE EXPIRATION OF SUCH 90 DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. § 44-14-366." Provided, however, that the failure to correctly complete any of the blank spaces in the above form shall not invalidate said form so long as the subject matter of said release may reasonably be determined. (e) When a claimant is requested to execute a waiver and release in exchange for or in order to induce making of final payment, the waiver and release shall substantially follow the language of the following form, be in at least 12 point font, and need not be in boldface capital letters:    "WAIVER AND RELEASE OF LIEN     AND PAYMENT BOND RIGHTS UPON FINAL PAYMENT     STATE OF GEORGIA COUNTY OF ______________ THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY ____________________________ (NAME OF CONTRACTOR) TO FURNISH ____________________________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS ____________________________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF __________________, COUNTY OF __________________, AND IS OWNED BY ____________________________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.) UPON THE RECEIPT OF THE SUM OF $ ____________, THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID PROPERTY. GIVEN UNDER HAND AND SEAL THIS ________ DAY OF ________________________, ________. _________________________________________________________ (SEAL) _________________________________________________________________ ________________________ (WITNESS) ________________________ (ADDRESS) NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE WAIVED AND RELEASED ANY AND ALL LIENS AND CLAIMS OF LIENS UPON THE FOREGOING DESCRIBED PROPERTY AND ANY RIGHTS REGARDING ANY LABOR OR MATERIAL BOND REGARDING THE SAID PROPERTY TO THE EXTENT (AND ONLY TO THE EXTENT) SET FORTH ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 90 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE AN AFFIDAVIT OF NONPAYMENT PRIOR TO THE EXPIRATION OF SUCH 90 DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. § 44-14-366." Provided, however, that the failure to correctly complete any of the blank spaces in the above form shall not invalidate said form so long as the subject matter of said release may reasonably be determined. (f) Nothing contained in this Code section shall affect: (1) The enforceability of any subordination of lien rights by a potential lien claimant to the rights of any other party which may have or acquire an interest in all or any part of the real estate, factories, railroads, or other property for which the potential lien claimant has furnished labor, services, or material, even though such subordination is entered into in advance of furnishing labor, services, or material and even though the claimant has not actually received payment in full for its claim; (2) The enforceability of any waiver of lien rights given in connection with the settlement of a bona fide dispute concerning the amount due the lien claimant for labor, services, or material which have already been furnished; (3) The validity of a cancellation or release of a recorded claim of lien or preliminary notice of lien rights; or (4) The provisions of paragraph (2) of subsection (a) of Code Section44-14-361.2, paragraphs (3) and (4) of subsection (a) and subsections (b) and (c) of Code Section44-14-361.4, or Code Section44-14-364. (g) (1) When a waiver and release provided for in this Code section is executed by the claimant, it shall be binding against the claimant for purposes of the waiver of lien and labor or material bond rights to the extent stated in the waiver and release, subject only to the provisions of paragraphs (2) and (3) of this subsection. (2) Such lien and labor or material bond waivers and releases shall conclusively be deemed effective upon the earliest to occur of: (A) Actual receipt of funds in the amount set forth in the waiver and release; (B) Execution by the claimant of a separate written acknowledgment of payment in full; or (C) Ninety days after the date of the execution of the waiver and release, unless prior to the expiration of said 90 day period the claimant files in the county in which the property is located an affidavit of nonpayment, using substantially the language in the following form, where such language shall be in at least 12 point font and need not be in boldface capital letters:    "AFFIDAVIT OF NONPAYMENT UNDER     O.C.G.A. § 44-14-366    STATE OF GEORGIA COUNTY OF ______________ THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY ____________________________ (NAME OF CONTRACTOR) TO FURNISH ____________________________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS ____________________________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF __________________, COUNTY OF __________________, AND IS OWNED BY ____________________________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: ________________________________________________________________________ _________________________________________________________________________ ________________________________________________________________________ (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.) PURSUANT TO O.C.G.A. § 44-14-366 THE UNDERSIGNED EXECUTED A LIEN WAIVER AND RELEASE WITH RESPECT TO THIS PROPERTY DATED ________________________, ________. THE AMOUNT SET FORTH IN SAID WAIVER AND RELEASE ($____________) HAS NOT BEEN PAID IN FULL AND $____________ OF THE AMOUNT SET FORTH IN SAID WAIVER AND RELEASE REMAINS UNPAID, AND THE UNDERSIGNED HEREBY GIVES NOTICE OF SUCH NONPAYMENT. THE ABOVE FACTS ARE SWORN TRUE AND CORRECT BY THE UNDERSIGNED, THIS ____________ DAY OF ________________________, ________. ________________________________________________________ (SEAL) CLAIMANT'S SIGNATURE SWORN TO AND EXECUTED IN THE PRESENCE OF: ____________________ WITNESS ____________________ NOTARY PUBLIC WITHIN SEVEN DAYS OF FILING THIS AFFIDAVIT OF NONPAYMENT, THE FILING PARTY SHALL SEND A COPY OF THE AFFIDAVIT BY REGISTERED OR CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY TO THE OWNER OF THE PROPERTY. IF THE FILING PARTY IS NOT IN PRIVITY OF CONTRACT WITH THE PROPERTY OWNER AND A NOTICE OF COMMENCEMENT IS FILED FOR THE IMPROVEMENT ON THE PROPERTY FOR WHICH THE FILING PARTY'S LABOR, SERVICES, OR MATERIALS WERE FURNISHED, A COPY OF THE AFFIDAVIT SHALL BE SENT TO THE CONTRACTOR AT THE ADDRESS SHOWN ON THE NOTICE OF COMMENCEMENT. WHENEVER THE OWNER OF THE PROPERTY IS AN ENTITY ON FILE WITH THE SECRETARY OF STATE'S CORPORATIONS DIVISION, SENDING A COPY OF THE AFFIDAVIT TO THE COMPANY'S ADDRESS OR THE REGISTERED AGENT'S ADDRESS ON FILE WITH THE SECRETARY OF STATE SHALL BE DEEMED SUFFICIENT."    (Code 1981, §44-14-366, enacted by Ga. L. 1991, p. 915, § 3; Ga. L. 1999, p. 81, § 44; Ga. L. 2008, p. 1063, § 5/SB 374; Ga. L. 2012, p. 775, § 44/HB 942; Ga. L. 2020, p. 733, § 1/SB 315; Ga. L. 2021, p. 446, § 1/SB 143.)    The 2008 amendment,  effective March 31, 2009, rewrote this Code section.    The 2012 amendment,  effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, revised punctuation in subparagraph (f)(2)(C).    The 2020 amendment,  effective January 1, 2021, rewrote this Code section.    The 2021 amendment,  effective July 1, 2021, substituted "AFFIDAVIT" for "LIEN" in the middle of the last sentence of the form in paragraph (g)(2).   Law reviews.   - For annual survey of construction law, see 57 Mercer L. Rev. 79 (2005). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For note on 1991 enactment of this Code section, see 8 Ga. St. U.L. Rev. 166 (1992).   JUDICIAL DECISIONS   Limitations period.    - Because a 30-day limitations period in a contract between a general contractor and a subcontractor for the subcontractor to request arbitration of a dispute between the parties after notice by the contractor of default by the subcontractor did not contravene O.C.G.A. § 44-14-366, the trial court did not err in enforcing the provision; the subcontractor's conduct, not the terms of the contract, impaired the subcontractor's claim and any lien rights the subcontractor would have had with respect to that claim had the subcontractor timely arbitrated the contractor's decision to a favorable result. Holt & Holt, Inc. v. Choate Constr. Co., 271 Ga. App. 292, 609 S.E.2d 103 (2004).   Waiver and release binding on claimant for all purposes.    - Trial court erred in denying a construction company's motion for summary judgment because the subcontractor failed to file the notice of non-payment within 60 days of the date shown on the waiver, and the plain and unambiguous language of O.C.G.A. § 44-14-366(f)(1) clearly provided that the failure to so file deemed the amount at issue paid in full. ALA Construction Services, LLC v. Controlled Access, Inc., 351 Ga. App. 841, 833 S.E.2d 570 (2019).    Georgia Court of Appeals held that the materialman must file a notice of non-payment within 60 days of the date shown on the waiver and release or else the amount at issue shall conclusively be deemed paid in full, and the presumption of payment is binding against the claimant for all purposes. ALA Construction Services, LLC v. Controlled Access, Inc., 351 Ga. App. 841, 833 S.E.2d 570 (2019).