When a waiver takes effect
Under O.C.G.A. 44-14-366(g)(2), a lien waiver and release is conclusively effective at the earliest of three events:
- actual receipt of the funds stated in the waiver;
- the claimant signing a separate written acknowledgment of payment in full; or
- 90 days after the waiver is signed, unless an affidavit of nonpayment is filed before the 90 days run.
Recording the waiver is not one of the three events; what gets filed in the county is the affidavit of nonpayment.
Counting 90 days
With no funds received and no separate acknowledgment, the waiver takes effect on day 90. A waiver signed January 10, 2025: 21 days to January 31, plus 28 for February makes 49, plus 31 for March makes 80, plus 10 lands on April 10, 2025.
Traps: March 11 uses the old 60-day period, a common error. January 20 uses 10 days, the prompt-pay subcontractor period. Six months is not in the statute.
Stopping the 90-day event
An unpaid claimant keeps the waiver from taking effect on day 90 only by filing an affidavit of nonpayment in the county where the property is located before the 90 days run.
The trap: filing a claim of lien does not stop the waiver. Neither is a demand letter or a revocation letter.
Affidavit form
The affidavit must be in substantially the statutory form in at least 12 point font. 10 point is too small, 14 point is not the minimum, and boldface capitals are not required.
Who gets a copy, and how
- Within 7 days of filing, send a copy to the property owner by registered or certified mail or statutory overnight delivery. Filed August 4: due by August 11. Regular mail and email are not allowed; 10 or 15 days is wrong.
- A filer not in privity with the owner, on a job where a Notice of Commencement was filed, must also send a copy to the contractor at the Notice of Commencement address. The county clerk and the lender are not named recipients.