A disgruntled or spiteful contractor or construction materials provider just filed a lien on your property. Now what? What does this mean? What should you do?
MECHANIC’S OR MATERIALMAN’S LIENS
Contractors and providers of materials have the right under O.C.G.A. § 44-14-361.1 to file a mechanic’s or materialman’s lien on a property for which they have provided labor, services, or materials for any outstanding balance that they believe they are owed as long as they file said lien within 90 days of the last day that any materials, labor, or services were provided by the contractor or provider filing the lien. This claim of lien may be legitimate, only partially accurate, or completely false. This does not preclude a mechanic or materialman (also referred to as a “lien claimant”) from filing a lien. Fortunately, however, you as the owner of the property have the right to fight it!
A lien has been filed on your property; what does this mean? When a mechanic or materialman has filed a lien on your property, your property is encumbered by the debt allegedly owed on that lien. You will not be able to sell your property until this lien has been released by the filer, as a matter of law, or as the result of a cash bond. Granted you may not intend to sell your property any time soon even if a lien has been filed on it, but it is important to know that regardless of whether or not you intend to sell the property bearing the lien, the mechanic or materialman has the option of commencing a lawsuit to enforce and/or collect on that lien for 365 days after filing their lien.
CONTESTING A LIEN
Let’s talk fighting this lien. As the property owner, if the contractor does not take any action in court to enforce the lien within 365 days, then the lien is terminated as a matter of law. Your best option to fight the lien is to shorten this clock. If you send the lien claimant what is called a “Notice of Contest” in opposition of the lien and file that Notice of Contest with the Superior Court of the county in which the property and lien are located, then the deadline for the mechanic or materialman to begin an enforcement action is shortened to 60 days from the filing of your Notice of Contest.
There are very specific steps one must take for the Notice of Contest to be valid. In general these steps include notifying the mechanic or materialman at the address listed on the face of the lien document. Once the mechanic or materialman has received your Notice of Contest, you may file the Notice of Contest with the Superior Court of the county where the property and lien are located, with proof of notice attached.
From the date of filing your Notice of Contest, the mechanic or materialman will have 60 days to commence an action to enforce their lien. If the mechanic/materialman fails to do so within 60 days of the filing date of the Notice of Contest, then the materialman/mechanic surrenders their right to enforce their lien. 30 days after surrendering such a right to enforce, the lien is terminated as a matter of law.
If you have had a lien filed against your property we would be happy to speak with you in further detail. Call us at 770.709.6050 or click “contact” above.