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In Rey Coliman Contrs., Inc. v. PCL Constr. Servs., 296 Ga.
App. 892 (Ga. Ct. App. 2009) a supplier, Rey Coliman Contractors,
Inc. (“RCC”), was denied enforcement of its lien
rights for having failed to properly perfect its lien under Georgia
law. Specifically, RCC furnished materials and labor to a
subcontractor on a construction project for which PCL Construction
Services (“PCL”) was acting as a general contractor.
RCC argued that certain actions necessary to perfect its lien
were made inapplicable due to PCL’s having failed to comply
with a certain requirement of the lien statute. The Court of Appeals
of Georgia, however, found such argument unavailing
and affirmed the trial court’s granting of summary judgment in
favor of PCL, thus dismissing RCC’s lien suit.
Specifically, the court deemed RCC’s lien ineffective because
RCC failed to provide PCL with a timely “Notice to Contractor”
to perfect a lien as required by Georgia’s mechanic’s lien
statute. Under the statute, any party that has a right to a lien,
but does not have privity with the general contractor, must send
to the general contractor a notice containing certain required
information. Such a requirement is nullified, however, where
the owner, agent of the owner, or contractor fails to file a
“Notice of Commencement” with the clerk of the superior
court in the county in which the project is located, or fails to
provide the same to the subcontractor or supplier when requested
to do so in writing. Generally, the Notice of Commencement
contains some of the information necessary for
filing a lien. In the instant case, PCL properly filed the Notice
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of Commencement and it was undisputed that RCC never
requested a copy of such notice from PCL.
RCC relied upon a different section of the mechanic’s lien
statute requiring that a copy of the Notice of Commencement
be posted at the project. Although there was disagreement
between RCC and PCL as to whether this notice was actually
posted, the court accepted RCC’s contention that the notice
was in fact not posted as required for the purposes of PCL’s
motion for summary judgment. The court determined that a
general contractor’s failure to post the Notice of Commencement
at the project does not excuse a lien claimant’s failure to
provide a Notice to Contractor. Essentially, the Court of Appeals
of Georgia ruled that failing to fulfill the requirement to
post the Notice of Commencement was of no consequence. In
support of such a determination, the Court of Appeals of
Georgia postulated that if the legislature had intended for the
failure to comply with the posting requirement to carry the
same consequences as the failure to file or provide copies of
such notice, then the legislature would have explicitly stated
such intention in the statute.
While Georgia’s mechanic’s lien statute states that the failure
either to properly file the Notice of Commencement or to provide
a copy of the same to a subcontractor or supplier when
requested excuses a supplier from having to provide the general
contractor notice of its lien claim, the same cannot be said
continued on page 3
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