What is a Notice of Commencement and Notice to Contractor and when do they apply to me?
If you are working as a subcontractor and don't have a direct contract with the general contractor the filing of a Notice of Commencement on a project will affect your lien rights.
What is a Notice of Commencement? A Notice of Commencement is a notice required by O.C.G.A. § 44-14-361.5 to be filed by the owner, or the general contractor (contractor with a direct contract with the owner) in the superior court in the county where the project is located and posted on the job site. The Notice of Commencement essentially provides information necessary for filing a claim of lien or a claim on a bond. Information which needs to be included in the Notice of Commencement include: the identity of the owner of the property, the location and legal description of the property where the project is located, the name and address of the party for whom the construction improvements are being made (if not the property owner) and the name of the surety if there is a payment or performance bond.
How can I find out if a Notice of Commencement has been filed on the job: 1) go to the notice board on the project site to see if a Notice of Commencement has been filed; 2) Request, in writing, a copy of the Notice of Commencement from the general contractor or owner. The general contractor or owner have ten (10) days to provide you with a copy of the Notice of Commencement. Hint: if a Notice of Commencement is not posted on the notice board, take a photo of the notice board with your smart phone. . . .that photo may come in handy later.
What do I need to do if a Notice of Commencement has been filed? If a Notice of Commencement has been filed and you are the sub of a sub (don't have a contract with the general contractor) you must file a Notice to Contractor.
What is included in the Notice to Contractor? You must include: 1) the name, address and telephone of the person providing the labor, service or materials; 2) the name and address of each person at whose instance the labor, service or materials are being furnished; 3) the name and location of the project set forth on the Notice of Commencement; 4) a description of the labor, service or materials being provided and the anticipated value. See O.C.G.A. § 44-14.361.5(c)(4) for information required.
To whom do I send the Notice to Contractor? The Notice to Contractor must be sent to the owner and the general contractor at the addresses set forth on the Notice of Commencement. How do I send the Notice to Contractor? There isn’t a specific requirement, but it is a good idea to send the notice by certified mail, return receipt requested so you can prove later you sent the notice and it was received.
When do I need to send the Notice to Contractor? 30 days within the filing of the Notice of Commencement or within 30 days following your first delivery of materials, labor or service on the project.
What happens if no Notice of Commencement is filed on the job? If no Notice of Commencement has been filed, then no Notice to Contractor is required to be filed and O.C.G.A. § 44-14-361.5 doesn't apply. What happens if a Notice of Commencement is filed but no Notice to Contractor is filed? The subcontractor who provided labor, service or materials on the job but did not file a Notice to Contractor will have waived any lien rights with respect to the labor, services or materials delivered.