Help Me With Sign Georgia Banking Presentation

Esign mechanics lien

good morning everyone this is ariela Wagner the founder of some reconstruction solutions and a wonderful Markov a construction attorney that specialized in construction law and today we are going to learn from mark the top four mistakes that invalidate a Georgia lien so without further a few I will introduce mark Cobb Thank You ariella appreciate that very much as she mentioned i am a georgia construction attorney we have two offices in office in atlanta and in office in south Georgia and we cover the entire state of Georgia my particular focus of practice is representing suppliers and subcontractors so consequently we have a lot of experience filing liens and we understand the problems that can arise when a lien is filed if it's not filed properly so today we're going to cover very briefly the top four mistakes that can invalidate Georgia lien the very first lien that I've identified is the failure to understand Georgia's statutory construction notice requirements basically in Georgia certain claimants or potential claimants have to send a notice to owner or nose to contractor at the beginning of a project so two quick definitions that we want to cover is a notice of commencement and then what is it notice to owner noticed a contractor a notice commencement is a document it's actually filed by the general contractor or the owner of the project and it's a document filed in the Clerk of Courts office and accepts out certain information that will that helps lower tiered subcontractors to file liens to make payment on claims etc etc the notice to owner is the reverse it's a notice that's actually given by a lower tier subcontractor or supplier it's someone who lacks privity of contract with the GC or owner and we'll talk about that in just one second in order to follow the Chairman's lien it's imperative to understand whether or not a potential link claimant so keep in mind this means something you have to do when you first begin working on a project in Georgia it's imperative that you understand whether or not you have to comply with Georgia's statutory cuz action notice requirements in order to determine whether or not the notice requirements apply to you it's important to understand your relationship with the owner of the project in legal terms that's called privity of contract and in Georgia it's different than it is in other states so the question always comes to be how does the potential lien claimant determine whether or not their primitive contract if you look at the graph at the bottom of the slide we've tried to make it very simple if you are contracted with the project owner then the Georgia statutory scheme does not apply to you no notice is required if you're contracting party is the general contractor then no notice is required in those instances even though you're not working with the owner Georgia law says that you have privity of contract with the owner because the general contractor is an agent of the owner and as an agent the general contractor has hired you they know that you're on the job and it's their obligation their responsibility to flow the money downstream to you if you are contracting with a subcontractor or lower than notice is required and that it then allows the owner the general contractor when they're making payments to know that the payments are filtering downstream to someone who's third tier below if you provide services to any subcontractor or third-tier if you're 30 or lower then you have to comply with Georgia's construction notice scheme and there's two things that are very vital for this the first one is you have to send the notice to owner I'm going to use the phrase in t.o to refer to notice the owner and notice the contractor you must in the NT o within the first 30 days that you begin working on the project the second obligation is that the nto has to include the following six items it has to have your contact information including your telephone number we actually recommend putting a particular employees name or project managers name or a contract administrator persons name that way if and when someone higher tiers which is the general contractor or owner wants to get a lien waiver or has a question they have somebody who can actually answer their questions but having actual persons name is not required in the statute just the contact information which is address and phone number you also have to have the name and the address of the entity with whom you contracted that allows them to flow the make sure that they can flow the money downstream they know who to be watching to make sure that the money gets down to you the third thing is you have the name of the project this gets a little tricky you have to have been named the project as identified in the notice of commencement so it's a good idea to request or get a copy of the notice of commitment before you send the nto keeping in mind all this has to be done within the first 30 days you begin on the project in addition you have to have a description of materials labor services which you'll be providing that could be a very vague description you don't have to itemize things it could be something as simple as supplying electrical conduit and related materials it does not have to be an autumn is a shin the next piece that has to be included is the anticipated contract value of the goods or services you're providing if you know them if you don't know them yet then you it's wise to state that in your NT o if you do have a concept of what the value is what the contract value is include that but you might want to include some sort of particular language that says which may be amended or may be altered by future financial arrangements future contracts etc and then finally the most owner must be sent to the GC and to the owner to their addresses as they listed the notice of commencement so again you need to have that notice commence at hand in order to do this if you must send an NT o if the Georgia secretory notice scheme applies to you and you fail to send the NT 0 then your lien will not be enforceable the clerk may accept earlene it may be filed but will not be enforceable you will not be able to collect and so it is very important for the when you first begin working on a Georgia project to understand whether or not you have to send nto number two and this would be the most difficult one or the most tricky one that we have but the second reason why liens fell in Georgia is the failure to timely file a Georgia lean it seems very easy upfront but as your you'll see into one second there are some tricky or technical issues that complicates this a little bit generally in Georgia liens must be filed within 90 days of the last day in which the materials services or labor were provided the project keep in mind that's not invoice date so if you invoice at the end of the month but your last day worked would say the 22nd or 23rd that 90-day period begins ticking from the 22nd or 23rd not the invoice date 90 days from last day work is fairly easy to calculate however there's one significant exception to this that impacts a lot of people negatively if you are required to sign a lien waiver prior to receiving payment you're so you have to submit once your pay up or with your invoice and unpaid lien waiver can reduce the amount of time you have in order to file a lien back up for one second Georgia only has two valid lien waiver forms that's an important distinction to recognize valid forms there's no way that I could tell you over the phone what a valid form is but it's in the statute any lawyer could certainly help you with that it's fairly easy to find online it's an ugly form to be honest it's all caps and it's difficult to read but the two forms that we have an interim waiver and we have a final labor and they're substantially similar forms but they are very tricky they are conditional for 60 days and what that means is the lien waiver does not kick in until condition has been met so in other words you'd fill out a lien waiver form that you're owed $25,000 on a project upon payment of that $25,000 then you waive your right to file a lien but as I mentioned they're tricky so after 60 days George's wink lien waivers become unconditional what that means is no matter what it doesn't matter whether or not you have received your payment you have waived your right to file a lien unless you take certain steps and so it is essential to watch the deadline and enforce your rights before the end of the six-day 60-day conditional period it's important to note that the 60-day deadline runs from the date of the lien waiver it has nothing I mean it has nothing to do with the last day what you actually work the project furthermore the 60 days runs even if you continue to work on the project which anybody who's them in the construction industry a long time understands that slope a doesn't mean you walk off the job it just means you're not being paid as quickly as you're supposed to be well this can catch people up in Georgia so be careful if there's continuing work on a project that payments are slow then you might accidentally forfeit some of the money you're owed this is so important that I've set forth an example we're going to go through quickly but if you have any questions about this be glad you answer it let's assume for a second that you enter into a nine-month contract that begins on january first and it's completed at the end of sep tember let's say that it's a nine hundred thousand dollar contract which means you I mean course this wouldn't happen realize but let's of pity let's say this the pay apps are for one hundred thousand dollars each the nine months so perhaps one through three which is January through March the general contractor or the owner pay fairly promptly little slow 30 to 45 days after you submit you pay up perhaps four and five which is April and May they've become tardy payments you ask where the payments coming and it's oh we're going to pay you next week when I paid next week and sure enough in about 45 or 60 days the payments arrived then the last free pay apps the june through September paps they're not paid or the project end ending they keep promising payments you continue finally you finish the job what most people think if you look at the box from the lower left hand / your screen is that the last day worked in September 30th so you can file a lien for the full amount which would be june july august and sep tippers pay apps and you have until december 29 to file that claim well that's not true unfortunately in georgia if you kind of validly labor what really happens if you direct your attention to the right is that the ability to collect the june thirtieth pay app expired August twenty-ninth the ability to collect the July thirty-first pap expired September 29 the august 30 30 first patent expired August 30th and sep tember 30th pay app expired November 29th so the question then becomes have you lost 100 200 300 or 400 thousand dollars to be very mindful of George's lien waivers so what we tell clients when they want to calculate the deadline for filing a lien we want to say that George's material and liens must be filed either one within 90 days or the last day worked or two within 60 days of the earliest unpaid lien waiver whichever a shorter incidentally there are some of things you can do with an unpaid lien waiver rather than buying a lien but typically a lien is of the recommended and easiest and least expensive thing to do moving on to number three the third reason why liens fail in Georgia is your lane does not properly attached and if it doesn't properly attached then it will be invalid you know whether or not a lien attaches to a particular piece of real estate can be a very complex legal question however the two common mistakes that we see when people follow their own lean people come to us and they tell us this information and then we we have to correct it the first one is correct identification of the owner if the owner is not identified correctly then the title abstract er may not discover your lien and that's a big deal when you file a lien you want to prevent the property from changing hands you want to be ahead of any future creditor or lender to the owner of the property so you want that lead to pop up that way you basically get paid before those events occur however if the lien is if the name is misspelled something as simple as that the tunnel AB structure is not going to find your lien and it probably will not be enforceable against any transfer to third parties other things to think about is you have you must include all the and so frequently I'm particularly in a husband-wife situation with their plenty of others you have to include the joint tenant maybe you think party a owns it when really it's party a and B or perhaps the property has already been deeded to some children so maybe three or four owners to the property you must identify each and every one independently similarly individuals often put the property in trust so it's um employed to recognize it's not just John Smith's property but it's the irrevocable trust of John Smith dated january first 2014 that actually owns the property we see a lot of times in commercial properties that they are different but similar names and so ABC company maybe become ABCD parse one company ABC partial to company and so it's very important to make those distinctions failure to do that one validate your lien secondly this is the second big problem that prevents attachment of the length of the property is the correct identification of real estate we don't recommend using straight address typically particularly new construction lot of times the street addresses or not known or difficult to find also you want to make sure that your property is picked up by a title abstract ur arm and so we always recommend using a metes and bounds so many people rely upon the tax office information for ownership indeed information while that may be a useful starting point do not rely upon that several georgia 159 counties of those counties the vast majority update that we record once a year and that gives a lot of opportunity for transfers to occur and so you may not be identifying the correct owner if you rely solely upon that information and the fourth and final reason why liens fell in Georgia is the failure to perfect the lien so many people think that when they file a lien it lasts forever and they're going to get paid well that's unfortunately not true in Georgia liens automatically expire unless they are perfected so you say when when do they expire generally liens expire 395 days from the date that they are filed if an owner or general contractor has filed a document called a notice of contest of lane for the lien will expire in 90 days from the date of the notice of the contest of link so how do you make your lien exist beyond that 392 days not three hundred ninety five day period or that 90-day period you must protect the lien generally the statute requires that you must take steps to enforce earlene within that time period there are several different methods could include such things as mediation arbitration or pursuing something in bankruptcy court if one of the parties is held bankruptcy but the typical most common means of perfecting lien is filing a lawsuit against the entity with whom you contracted you have to do it before the deadline and the deadline is a little bit different than the deadline than the expression day of the lien the deadline to file this suit or take this action is 365 days from the date the lien was filed or 60 days from the date of the notice of contest which is whichever is shorter in addition within 30 days of taking that action filing a lawsuit for example then you must also file a document in the lien record that is called a notice of filing of action to enforce material in flames basically it connects the dot between the lien that you filed the lawsuit or other action you've taken and lets the world know that you've perfected your lean and your lien is good for at least 21 years and George at that point and so hopefully you'll get your paid you'll get paid by the odor at some point without even having to foreclose the lane so real quickly the for summary summary of the four reasons why Georgia liens may not be enforceable first one is failure to comply with Georgia statutory construction notice requirements second one timely filing of the Georgia lien be very mindful of the lien waivers that 60-day deadline if the lien does not properly attach that it will be invalid and then you also to perfect the lane otherwise it will expire and be meaningless so that's all I have certainly willing to take questions mark that was absolutely fabulous and if anyone has any questions you can ask in the lower right hand corner of the GoToWebinar panel without any names and we can answer those for you so far we don't have any questions but if you're nervous even ask a question you can always email mark or of course you could email me and I could forward on your questions to mark well we did a great job or put everybody to sleep I think they're they're taking in all the information and perhaps we'll have a few questions for you later today well you get a fabulous job and I wish everyone a great rest of the day Thank You Ella thank you all for participating thank you bye for now