A recent Georgia Court of Appeals case held that a Notice of Commencement which failed to include a legal description of the property being improved was deficient; therefore, the court held that a materialman, supplier or subcontractor was relieved of the requirement to send a Notice to Owner (or a Notice to Contractor).

In our practice representing construction suppliers and contractors throughout Georgia, we have reviewed hundreds (if not thousands) of Notices of Commencement. Although we haven’t kept numerical records, about 95% of all Notices of Commencments fail to include a legal desciption. This is very bad news for contractors and real property owners; however, this is very good news for materialmen, suppliers and sub-contractors. Thus, if a materialman, supplier or subcontractor needs to file a materialmen’s lien, but they did not send a Notice to Owner, that materialman, supplier or subcontractor may still be able to file a materialmen’s lien!

This recent case is a wonderful reminder to all materialmen and suppliers that–although they may think they are not entitled to file a construction lien because they failed to send a Notice to Owner–they may still be able to file a materialmen’s lien in Georgia because the owner or the general contractor did not file a proper Notice of Commencement.