O.C.G.A. § 44-14-361 — Porter Coatings v

Stein Steel & Supply Co., 157 Ga. App. 260, 277 S.E.2d 272, 1981 Ga. App. LEXIS 1769, aff’d, 247 Ga. 631, 278 S.E.2d 377, 1981 Ga. LEXIS 820 (1981). No lien for material furnished subcontractor. — A materialman furnishing material for the improvement of real estate to a subcontractor who has no contractual relation with the owners of such realty does not thereby acquire a lien upon the property so improved. General Supply Co. v. Hunn, 126 Ga. 615, 55 S.E. 957, 1906 Ga. LEXIS 483 (1906); George W. Muller Bank Fixture Co. v. Georgia State Sav. Ass’n, 143 Ga. 840, 85 S.E. 1018, 1915 Ga. LEXIS 630 (1915). Debt incurred whether or not material used. — A ﬁnding that the realty ought not be charged with a debt for the reason that the realty as ﬁnally improved does not contain the material furnished is not a ﬁnding that the debt is not owing and may go unpaid. The debt itself does not depend upon the nicety of whether the material was or was not ﬁnally incorporated into the improvement. The debt exists if materials were furnished and not paid for. United Bonding Ins. Co. v. Good- 44-14-361 Wynn Elec. Supply Co., 124 Ga. App. 545, 184 S.E.2d 508, 1971 Ga. App. LEXIS 1015 (1971). Georgia law recognizes the constructive trust fund doctrine with respect to payments owed materialmen by their contractors for improvements made to a third party’s realty. Bethlehem Steel Corp. v. Tidwell, 66 B.R. 932, 1986 U.S. Dist. LEXIS 18107 (M.D. Ga. 1986). Constructive trust in favor of a materialman does not automatically exist as a result of O.C.G.A. § 44-14-361 with regard to funds transferred by a payor to a construction contractor/debtor. In re Sun Belt Elec. Constructors, Inc., 56 B.R. 686, 1986 Bankr. LEXIS 6886 (Bankr. N.D. Ga. 1986). Materialmen having a beneﬁcial interest in a contractor’s bond may bring an action on the bond in their own name rather than in the name of the nominal obligee. Sims’ Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff’d, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (11th Cir. 1982). When materialman of subcontractor may bring action on payment bond. — If the general contractor’s payment bond deﬁnes a claimant under the bond as one supplying material to a subcontractor, then a materialman of a subcontractor may bring an action on the bond for the subcontractor’s nonpayment; if the bond expressly limits a right of action on the bond to the named obligees or is conditioned on the general contractor’s payment of only those materialmen having a direct relationship with the general contractor, then a materialman of a subcontractor may not bring action on the payment bond; and if the bond is conditioned on the general contractor’s payment of all persons furnishing labor and material under or for the contract, then, at a minimum, materialmen of the general contractor may maintain an action on the bond. Sims’ Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff’d, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (11th Cir. 1982). Materials delivered are presumed to have been used. — A materialman is not required to show that the materials 707 Materialmen (Cont’d) for which the materialman claims a lien were actually used on the job of the owner against whose interest the materialman is asserting the lien. It is the general rule that there is a presumption of the use of materials in a building or improvement arising from the fact of their delivery thereto for that purpose, and the burden is then on the property owner to prove that the material was not so used. Maloy v. Planter’s Whse. & Lumber Co., 142 Ga. App. 69, 234 S.E.2d 807, 1977 Ga. App. LEXIS 1478 (1977). Improvements on separate pieces of property. — Where there is a single contract for improvements on separate pieces of property the lien for materials furnished attaches to each piece of property. Lyon v. Cedartown Lumber Co., 13 Ga. App. 450, 79 S.E. 236, 1913 Ga. App. LEXIS 191 (1913). Materialman need not show what material went into each house. — To entitle a materialman to a single lien on several houses, being simultaneously built under one operation, for material furnished generally for them all, and to be used indiscriminately among them as needed, it is not necessary for such materialmen to prove just what material went into any particular house, provided it is shown that the material was delivered under such order. Christian v. Bremer, 199 Ga. 285, 34 S.E.2d 40, 1945 Ga. LEXIS 303 (1945). All charges made by materialman for use of equipment are nonlienable items. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412, 170 S.E.2d 721, 1969 Ga. App. LEXIS 796 (1969). When vendor liable for liens on vendee’s improvements. — The liens of laborers and materialmen do not rest upon contract but upon the law, and the title of the true owner cannot be subjected to liens for materials or labor done in its improvement unless the owner expressly or impliedly consents to the contract under which the improvements are made. However, when the vendor has in some way consented to the improvements of real estate by the vendee, or has expressly 44-14-361 or impliedly authorized it, or has cooperated with the vendee in the plans for the improvements, or has been active and instrumental in having the improvements made, such liens will attach to the property. West Lumber Co. v. Gignilliat, 77 Ga. App. 336, 48 S.E.2d 688, 1948 Ga. App. LEXIS 549 (1948). A vendor of real estate, who induces one who has a contract to purchase land, to expend labor and material in improving the land, cannot defeat the claims for liens by those who contribute their labor and material to enhance the value of the property. In such a case, in the absence of a controlling agreement, the vendor cannot insist that the mechanic’s lien shall be subordinated to the vendor’s title or interest in the realty. Williams v. Brewton, 170 Ga. 164, 152 S.E. 441, 1930 Ga. LEXIS 412 (1930). Vendee who approves vendor’s improvements after contract liable for materialman’s lien. — Where a vendor improves real estate and the vendee, under a contract to purchase, consents to and cooperates in the improving of the property subsequently to the executory contract of sale, the lien of a materialman for materials furnished to the vendor for the improvement of the property, properly prepared and recorded and foreclosed in time, binds the interests of both vendor and vendee in the property even though the vendee receives a deed to the property and records it before the materialman’s lien is ﬁled for record and recorded. West Lumber Co. v. Gignilliat, 77 Ga. App. 336, 48 S.E.2d 688, 1948 Ga. App. LEXIS 549 (1948). O.C.G.A. § 44-14-361 does not operate in favor of contractor paving a sidewalk in a street adjacent to a lot. Seeman v. Schultze, 100 Ga. 603, 28 S.E. 378, 1897 Ga. LEXIS 112 (1897). Contractor’s lien attaches from time work is commenced or material is furnished under the contract. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686, 231 S.E.2d 785, 1976 Ga. App. LEXIS 1601 (1976), aff’d, 239 Ga. 345, 236 S.E.2d 592, 1977 Ga. LEXIS 910 (1977). When materialman’s lien attaches. — The lien of a materialman on real estate, arising under O.C.G.A. §§ 44-14- 708 44-14-361 MORTGAGES, SECURITY, LIENS 361 and 44-14-380, attaches from the time the work under the contract is commenced or the material is furnished. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65, 1947 Ga. App. LEXIS 374 (1947). The lien of a materialman upon property, for the improvement of which the material was furnished, as provided in O.C.G.A. §§ 44-14-361 and 44-14-361.1, attaches when the material is furnished in accordance with the contract. This is true notwithstanding the lien may become divested in favor of a bona ﬁde purchaser of the property without notice of the lien. Davis v. Stone, 48 Ga. App. 532, 173 S.E. 454, 1934 Ga. App. LEXIS 121 (1934). Perfected materialmen’s liens relate back to time work begins. — Liens under O.C.G.A. § 44-14-361 relate back to the time the work under the contract commenced, provided that the lien is properly perfected. Marietta Baptist Tabernacle v. Tomberlin Assocs., 576 F.2d 1237, 1978 U.S. App. LEXIS 9984 (5th Cir. 1978). Lien covers all items delivered if last item lienable. — A materialman’s lien rights attach following the ﬁrst delivery of materials to be used on a job and expire 90 days following the date of the last delivery. Assuming the last item delivered is a lienable item, then the subsequently perfected lien relates back to cover all items delivered, including those items delivered more than 90 days prior to ﬁling the lien. Mullins v. Noland Co., 406 F. Supp. 206, 1975 U.S. Dist. LEXIS 14649 (N.D. Ga. 1975). Materialman may pursue lien rights prior to payment and despite subcontractor’s bankruptcy. — Prior to payment, and notwithstanding the intervening bankruptcy of the subcontractor, a materialman may enforce inchoate lien rights against the owner. Mullins v. Noland Co., 406 F. Supp. 206, 1975 U.S. Dist. LEXIS 14649 (N.D. Ga. 1975). Materialman’s lien was void. — Subcontractor’s O.C.G.A. § 44-14-361 special lien was void because the subcontractor failed to comply with the perfection requirements in O.C.G.A. § 44-14-361.5(a), (c); the fact that the general contractor on a construction project had failed to post a 44-14-361 notice of commencement at the construction site did not absolve the subcontractor from complying with the perfection requirements. Rey Coliman Contrs., Inc. v. PCL Constr. Servs., 296 Ga. App. 892, 676 S.E.2d 298, 2009 Ga. App. LEXIS 344 (2009). Lost proﬁts not lienable. — Contractor’s estimated lost proﬁts were not lienable because lost proﬁts did not relate to work performed, or any value added, to the client’s property. Duke Builders, Inc. v. Massey, 351 Ga. App. 535, 831 S.E.2d 172, 2019 Ga. App. LEXIS 445 (2019), aff’d, 310 Ga. 152, 849 S.E.2d 186, 2020 Ga. LEXIS 653 (2020). Jury instructions. — Trial court did not err in refusing to give a jury instruction on privileged communications under O.C.G.A. § 51-5-7(3), where the materialman’s lien claimant’s claim of lien was not properly limited in scope; the lien claimant’s lien was almost eight times the amount the claimant supplied in labor and materials for improvement of the property. Amador v. Thomas, 259 Ga. App. 835, 578 S.E.2d 537, 2003 Ga. App. LEXIS 273 (2003). Machinists and Manufacturers of Machinery Machinery which cannot be basis of lien. — The general rule is that machinery not totally depreciated by use on the property or incorporated into the improvement, or in connection with which labor was also supplied cannot be the basis of a valid lien. Air Serv. Co. v. Cosmo Invs., Inc., 115 Ga. App. 596, 155 S.E.2d 413, 1967 Ga. App. LEXIS 1179 (1967). Equipment or machinery rented or leased to contractors to perform their work nonlienable. Mableton Erectors, Inc. v. Dunn Properties of Ga., Inc., 135 Ga. App. 504, 218 S.E.2d 175, 1975 Ga. App. LEXIS 1718 (1975). No machinist’s lien on realty unless machine becomes ﬁxture. — Machinists and manufacturers of machinery have no lien on real estate for machinery furnished, unless the machinery furnished is attached to, and becomes incorporated with, the realty for which it was furnished. J.S. Schoﬁeld & Son v. Stout, Mills & Temple, 59 Ga. 537, 1877 Ga. LEXIS 709 Machinists and Manufacturers of Machinery (Cont’d) 326 (1877); D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68, 1967 Ga. App. LEXIS 720 (1967). Lessor of machinery not attached to realty not entitled to lien. — A mere lessor of machinery to a contractor does not come within the class in favor of whom the lien is granted, nor does the machinery itself, not being something in the order of a steam mill or other mechanical device intended to be attached to and used on the realty. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68, 1967 Ga. App. LEXIS 720 (1967). Lessor of air compressor and drill to contractor has no lien on realty improved. — O.C.G.A. § 44-14-361 does not give a lessor of machinery consisting of an air compressor and drill a lien on real estate for the rental value of the machinery leased to a contractor who uses it in improving the real estate of the owner against whom the lien is sought. Air Serv. Co. v. Cosmo Invs., Inc., 115 Ga. App. 596, 155 S.E.2d 413, 1967 Ga. App. LEXIS 1179 (1967). Rental on company’s scaffolding not lienable. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68, 1967 Ga. App. LEXIS 720 (1967). Furnishing machinery for sawmill comes under section. — The furnishing of machinery for a steam sawmill, to improve or enlarge the mill or to keep it efficient, entitles the machinist to a lien under O.C.G.A. § 44-14-361 and not O.C.G.A. § 44-14-515. Filer & Stowell Co. v. Empire Lumber Co., 91 Ga. 657, 18 S.E. 359, 1893 Ga. LEXIS 300 (1893). Priority of Liens To be superior to other liens, lienholder must comply with every condition. — O.C.G.A. § 44-14-361 is in derogation of the common law, and must be construed strictly. Before the lien which it creates in favor of certain persons, under certain circumstances, which overrides all other liens, can be allowed, the party must show compliance with all 44-14-361 the conditions, and be personally brought within all the requirements and limitations of the statute. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137, 1935 Ga. LEXIS 501 (1935). There is a presumption of no notice to the grantee in a warranty deed, security deed or even a quitclaim deed. Bryant v. Ellenburg, 106 Ga. App. 510, 127 S.E.2d 468, 1962 Ga. App. LEXIS 749 (1962). Priority as between security deed and materialman’s lien. — The bona ﬁde holder of a security deed executed before the ﬁrst material was furnished, and therefore necessarily prior to the record of the materialman’s claim of lien, will take priority over the materialman’s claim of lien, although the security deed was itself not recorded until after the ﬁrst material was furnished. The rule would be different where the holder of the security deed had actual notice of the furnishing of the material prior to the execution of the deed; and might be different where the holder of the security deed had such actual notice prior to the record of the security deed. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619, 1942 Ga. LEXIS 571 (1942). An architect’s lien attaches from the time the ﬁrst work is done or the ﬁrst material provided. Murray v. Chulak, 250 Ga. 765, 300 S.E.2d 493, 1983 Ga. LEXIS 599 (1983). When grantee of deed loses priority over materialman’s lien. — Grantee in a deed may lose priority over a materialman’s lien where the grantee: has actual notice of the claim of lien, has constructive notice because the lien has been previously recorded, has consented to the making of the improvement either expressly or impliedly, or has misled the materialman as to the ownership of the property, giving rise to an estoppel. Bryant v. Ellenburg, 106 Ga. App. 510, 127 S.E.2d 468, 1962 Ga. App. LEXIS 749 (1962). When contractor’s lien takes priority over grantee of deed to secure debt. — The lien of a contractor on real estate improved under a contract with the owner thereof, as provided by law, if and when created and declared as required by law, attaches from the time the work under the contract is commenced, and will 710 44-14-361 MORTGAGES, SECURITY, LIENS take priority over the title acquired after the commencing of work by the contractor and with actual notice of the contractor’s claim by a grantee of a deed to secure debt from the owner of the real estate although the deed to secure debt was executed and recorded before the completion of the contract and before the claim of lien was formally ﬁled of record. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800, 1978 Ga. App. LEXIS 3217 (1978). Purchaser subject to lien if aware of unrecorded claim which is later properly perfected. — A contractor’s lien attaches from the time the work under the contract is commenced, although it lacks, certainly until it is recorded, the quality of constructive notice, but one who takes a deed to the property or purchases it while work is in progress, with knowledge of the contract and notice of the contractor’s claim of lien, though imperfect or unrecorded at that time, must be held to take the property subject to the lien, provided that the contract is completed and the lien is declared and enforced within the time prescribed by Georgia law. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800, 1978 Ga. App. LEXIS 3217 (1978). Purchaser at foreclosure sale under security deed who records before improvements not liable for lien. — The title of the true owner of land cannot be subjected to a lien for improvements, unless the owner expressly or impliedly assents to the contract under which the improvements are made. The grantee in a security deed is the true owner of the legal title. Where such deed is duly recorded before improvements are made, the purchaser at a foreclosure sale under the security deed holds title free from any lien for improvements placed upon the land subsequent to the execution and record of the security deed. Rutland Contracting Co. v. Gay Estate, 193 Ga. 468, 18 S.E.2d 835, 1942 Ga. LEXIS 416 (1942). Where security deed is executed before delivery of any material, and therefore necessarily before the record of the materialmen’s claim of lien, no question of notice to the grantee as to the materialmen’s claims of lien at the time the security deed was executed would be 44-14-361 involved. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619, 1942 Ga. LEXIS 571 (1942). When materialman’s lien prevails over vendor’s lien. — A materialman’s lien will prevail over that of a vendor, and attaches to the property improved, if the contract of sale provided that the vendor should go on and build upon the premises. Williams v. Brewton, 170 Ga. 164, 152 S.E. 441, 1930 Ga. LEXIS 412 (1930). Architect’s lien dated from time defendant later acquired interest in property. — Where defendant did not own the property at the time the defendant’s architect commenced work and defendant was seeking to acquire the property from the property’s owner and was not acting as agent for the property’s owner, the architect’s lien dated only from the time the defendant later acquired an interest in the property. Murray v. Chulak, 250 Ga. 765, 300 S.E.2d 493, 1983 Ga. LEXIS 599 (1983). A purchase money security deed or mortgage had priority over an architect’s liens against the purchaser of the property where the purchaser had simultaneously executed a security deed or mortgage for the purchase money and the provider of the purchase money did not have knowledge of the architect’s lien. Murray v. Chulak, 250 Ga. 765, 300 S.E.2d 493, 1983 Ga. LEXIS 599 (1983). Owner’s Liability and Defenses O.C.G.A. § 44-14-361 does not require ﬁling of notice at time of commencement of action against the owner. D & T Glass, Inc. v. Barrow Enters., Inc., 172 Ga. App. 797, 325 S.E.2d 170, 1984 Ga. App. LEXIS 2668 (1984). Amendment of materialmen’s lien. — Georgia Supreme Court held that the Georgia Court of Appeals properly held that amendment of a materialmen’s lien was authorized by O.C.G.A. § 44-14361.1(a.1) and that the lien amount may be reduced at any time. Massey v. Duke Builders, Inc., 310 Ga. 152, 849 S.E.2d 186, 2020 Ga. LEXIS 653 (2020). Owner need not pay more than contract price to materialmen and laborers. — A lien given by O.C.G.A. § 44-14361 attaches to the real estate improved 711 Owner’s Liability and Defenses (Cont’d) but the owner is not required to pay more than the contract price of the improvement to materialmen and laborers. Thompson v. Brannen Bldg. Supply, 153 Ga. App. 4, 264 S.E.2d 498, 1980 Ga. App. LEXIS 1651 (1980). Owner who pays contractor protected against materialmen’s claims after contractor pays claims. — Where an owner of real estate, upon which improvements have been erected by a contractor, has paid the full contract price to the contractor, and the contractor has applied the whole amount so received by the contractor to the payment of valid claims for material and labor employed in constructing the improvements, the owner will be protected against claims of lien for material furnished to the contractor, ﬁled subsequently to payment and application of the full contract price as above indicated. Jones Brick Co. v. Seagler Bros., 146 Ga. 19, 90 S.E. 473, 1916 Ga. LEXIS 558 (1916). Owner protected against claims recorded after payment and disbursement of contract price. — The owner is protected as against claims for liens which may have been ﬁled and recorded subsequent to the full payment and proper disbursement of the contract price. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782, 1969 Ga. App. LEXIS 889 (1969). Owner may apply cost of completion to lien when contractor abandons project. — Where a contractor abandons the contract without paying the materialman, who then ﬁles lien against owner for materials furnished the contractor and the owner, in order to obtain its completion engages others to furnish material and labor, the cost of completion may be applied by the owner, up to the contract price, as against the lien. Roberts v. Georgia S. Supply Co., 92 Ga. App. 303, 88 S.E.2d 554, 1955 Ga. App. LEXIS 583 (1955). Amount owner owes lienholders when completing building abandoned by contractor. — Where a contractor, under a deﬁnite contract contain- 44-14-361 ing a stipulated price for the entire work, undertakes to erect a building on a lot of land and abandons the construction of the building, the owner may complete the work; and if the owner does so, the necessary cost of so doing may be deducted from the contract price, and the property will be subject to the liens of materialmen and laborers to the extent only of the balance. Young v. Harley-Mitchell Hdwe. Co., 173 Ga. 35, 159 S.E. 567, 1931 Ga. LEXIS 252 (1931); Wooten v. Ford, 46 Ga. App. 50, 166 S.E. 449, 1932 Ga. App. LEXIS 35 (1932). Owner not liable for amount in excess of contract price when contractor abandons project. — Under O.C.G.A. § 44-14-361, the owner is in no event liable for an amount in excess of the contract price, and if the contractor abandons the contract, the owner may have it completed and charge the necessary cost of completion against the contract price, before being liable either to the contractor or to the materialman. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65, 1947 Ga. App. LEXIS 374 (1947). What owner must show when contractor abandons. — Where a contractor abandons the contract, the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens. If such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then the subcontractors, mechanics, and materialmen have no lien, since there is nothing due under the contract. The owner is required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained. Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812, 267 S.E.2d 251, 1980 Ga. LEXIS 945 (1980); Thompson v. Brannen Bldg. Supply, 153 Ga. App. 4, 264 S.E.2d 498, 1980 Ga. App. LEXIS 1651 (1980). Where owner contracts to pay by installments the owner does so at the owner’s own risk as to claims of subcontractors. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 712 44-14-361 MORTGAGES, SECURITY, LIENS S.E. 210, 1914 Ga. LEXIS 442 (1914), writ of error dismissed, 241 U.S. 687, 36 S. Ct. 451, 60 L. Ed. 1237, 1916 U.S. LEXIS 1857 (1916). Estoppel against owner’s denial that materialman performed contract. — Where the owner receives and uses the materials furnished by a subcontractor and has paid the contractor more than the amount claimed by the materialman, the owner is estopped to deny that the materialman had performed the contract. Koppe & Steinichen v. Rylander, 33 Ga. App. 686, 128 S.E. 68, 1925 Ga. App. LEXIS 682 (1925), aff’d, 162 Ga. 300, 133 S.E. 236, 1926 Ga. LEXIS 167 (1926). Estoppel by representations that materials to be used in building. — Where materials are furnished on representation of the owner of real estate that it is to be used in building thereon, the owner is estopped from setting up that some of it was not so used. Howell v. Cordray, 22 Ga. App. 195, 95 S.E. 762, 1918 Ga. App. LEXIS 237 (1918). Consent of owner to contract necessary. — The title of the true owner of land cannot be subjected to a lien for material or labor done in its improvement unless the owner expressly or impliedly consents to the contract under which the improvements are made. Reppard, Snedeker & Co. v. Morrison, 120 Ga. 28, 47 S.E. 554, 1904 Ga. LEXIS 436 (1904); Williams v. Brewton, 170 Ga. 164, 152 S.E. 441, 1930 Ga. LEXIS 412 (1930). Section permits materialman’s lien only if owner contracts for or assents to improvements. — The purpose of O.C.G.A. § 44-14-361 is to charge the owner of real estate with a lien for material furnished only when there was a speciﬁc contract for the improvements made, either made by the owner or assented to by the owner. Marshall v. Peacock, 205 Ga. 891, 55 S.E.2d 354, 1949 Ga. LEXIS 600 (1949). Lien applies only where owner authorizes improvements. — O.C.G.A. § 44-14-361 is dependent upon consent of the true owner, and subsection (b) is predicated upon the existence of authority from the owner to the contractor or other person to have the improvement made. This is shown by the provision therein 44-14-361 that in no event shall the aggregate of liens exceed the contract price. Where a stranger to title or other person contracts or employs a third person to make improvements, the owner of the land is not bound to disclose to such third person the fact of ownership, and such third person has no lien on the land. Rutland Contracting Co. v. Gay Estate, 193 Ga. 468, 18 S.E.2d 835, 1942 Ga. LEXIS 416 (1942). No lien against owner where no contract between owner and recipient of materials. — Where there is an absence of a showing of a contractual relationship between the owner and the person to whom the materials were furnished, no enforceable lien is created against the owner’s property. Liggett v. Harper, 151 Ga. App. 616, 260 S.E.2d 735, 1979 Ga. App. LEXIS 2662 (1979). Individuals who may not contract for improvements to bind true owner. — A stranger may not order work done upon real estate and thus charge the true owner. Neither may a tenant, unless there is some relation existing between the tenant and the landlord other than that of lessor and lessee. Marshall v. Peacock, 205 Ga. 891, 55 S.E.2d 354, 1949 Ga. LEXIS 600 (1949). Lessee cannot bind owner absent agreement. — One who furnishes material for the improvement of real estate, upon the employment of a contractor whose contract for the improvement is with a lessee, and who sustains no contractual relation with the owner of the fee, is not entitled to a lien as against such owner of the premises under the provisions of O.C.G.A. § 44-14-361. Reppard, Snedeker & Co. v. Morrison, 120 Ga. 28, 47 S.E. 554, 1904 Ga. LEXIS 436 (1904); Pittsburgh Plate Glass Co. v. Peters Land Co., 123 Ga. 723, 51 S.E. 725, 1905 Ga. LEXIS 586 (1905); Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602, 1930 Ga. App. LEXIS 515 (1930). Lessee cannot bind the owner even where the owner authorized the improvement, nor where the owner reimbursed the lessee, nor where the lessor owns a majority of the stock of the lessee. Central of Ga. Ry. v. Shiver, 125 Ga. 218, 53 S.E. 610, 1906 Ga. LEXIS 94 (1906); Consolidated Lumber Co. v. Ocean S.S. Co., 142 713 Owner’s Liability and Defenses (Cont’d) Ga. 186, 82 S.E. 532, 1914 Ga. LEXIS 644 (1914). Where the lessee is acting on own behalf alone in contracting to have the improvements made, the lessee is not the agent of the lessor in that transaction. If there is no contractual relation between the contractor and the lessor as to the making of the repairs, there is no materialman’s lien. Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602, 1930 Ga. App. LEXIS 515 (1930). A contract for improvements between a lessee and a materialman does not subject the interest of the lessor to a lien unless a contractual relationship exists between the lessor and the materialman as well. Accurate Constr. Co. v. Dobbs Houses, Inc., 154 Ga. App. 605, 269 S.E.2d 494, 1980 Ga. App. LEXIS 2308 (1980). A tenant cannot order work done upon the demised premises and charge the owner with the cost, unless there is some relation existing between the tenant and the landlord other than that of lessor and lessee, by virtue of which the landlord expressly or impliedly consents to the contract under which the improvements are made. Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602, 1930 Ga. App. LEXIS 515 (1930). Where a lessee contracted to make improvements to leased property and was obligated by the terms of the lease to be solely responsible for the costs thereof, a subcontractor had no right to impose a lien against the owner’s reversionary interest in the property based on unpaid labor and materials because the lessee was not acting as an agent for the owner pursuant to O.C.G.A. § 44-14-361(b). Worley v. Cowper Constr. Co., 259 Ga. App. 263, 576 S.E.2d 645, 2003 Ga. App. LEXIS 71 (2003). Landlord must expressly or impliedly authorize tenant’s improvements. — The mere knowledge of the landlord that the improvements are being made by the tenant is insufficient to charge the landlord or the landlord’s premises with their cost. The landlord must either expressly or impliedly autho- 44-14-361 rize the tenant to make the improvements for the former’s beneﬁt. Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 152 S.E. 602, 1930 Ga. App. LEXIS 515 (1930). Mere knowledge by lessor of improvements does not give rise to lien. Accurate Constr. Co. v. Dobbs Houses, Inc., 154 Ga. App. 605, 269 S.E.2d 494, 1980 Ga. App. LEXIS 2308 (1980). Materialman’s lien was enforceable against the landlord if the amount due under the lien was payable by the landlord to the tenant under the tenant improvement allowance in the lease. Corley Communications, Inc. v. Northwinds Ctr., L.P., 250 Ga. App. 775, 552 S.E.2d 131, 2001 Ga. App. LEXIS 814 (2001), cert. denied, No. S01C1736, 2002 Ga. LEXIS 329 (Ga. Apr. 15, 2002). Owner’s consent to improvement required. — Where there was no evidence showing that the owner had expressly or impliedly consented to the improvements made on its property, the superior court did not err in granting summary judgment to the owner. Anatek, Inc. v. CSX Realty Dev., L.L.C., 243 Ga. App. 552, 532 S.E.2d 115, 2000 Ga. App. LEXIS 385 (2000). Notice of lien unnecessary where party consents to improvements. — The rule of actual notice of claim of lien does not apply except as to those who do not consent to or cooperate in the making of improvements. The law charges with notice those who consent or cooperate. West Lumber Co. v. Gignilliat, 77 Ga. App. 336, 48 S.E.2d 688, 1948 Ga. App. LEXIS 549 (1948). Landlord not liable for excess costs of improvement. — Where a landlord approved a construction contract only to the extent of the $59,400 allowance for improvements it granted to the tenant, the tenant became the agent of the landlord for up to $59,400 in contract costs. However, although the landlord consented to improvements made in excess of the allowance, it could not be said that the landlord became a party to the contract for any improvements exceeding that amount. Thus, it could not be said that these additional improvements were furnished at the instance of the owner or some person acting for the owner. F.S. 714 44-14-361 MORTGAGES, SECURITY, LIENS Assocs. v. McMichael’s Constr. Co., 197 Ga. App. 705, 399 S.E.2d 479, 1990 Ga. App. LEXIS 1451 (1990). Owner not estopped by silence on improvements made by stranger. — The true owner, though cognizant that a stranger to the title is having improvements made on the premises, is under no legal duty to give to a materialman any information touching the ownership of the property; and the owner will not be estopped from setting up title thereto, as against a materialman, when nothing has been done by anyone to mislead the materialman as to the ownership of the premises improved. Rice v. Warren, 91 Ga. 759, 17 S.E. 1032, 1893 Ga. LEXIS 484 (1893); Reaves v. Meredeth, 123 Ga. 444, 51 S.E. 391, 1905 Ga. LEXIS 489 (1905); Bryant v. Ellenburg, 106 Ga. App. 510, 127 S.E.2d 468, 1962 Ga. App. LEXIS 749 (1962). How owner bound by third party’s improvements. — In some instances a true owner may be bound where improvements are made on the owner’s property if the owner consents to the contract under which the improvements are made; still, before the owner can ratify the acts of the party who procured the improvements to be made, that party must have acted as or attempted to act as agent of and on the behalf of the owner. Morgan v. May Realty Co., 86 Ga. App. 261, 71 S.E.2d 438, 1952 Ga. App. LEXIS 928 (1952). O.C.G.A. § 44-14-361 applies only so long as relation of owner and contractor continues. The contractor cannot bind the owner by ordering additional materials after the relation has ceased to exist. Sheehan v. South River Brick Co., 111 Ga. 444, 36 S.E. 759, 1900 Ga. LEXIS 558 (1900). Mere payment of contract price to contractor is insufficient. — An owner’s mere payment of the full contract price to the contractor, standing alone, is not and has never been a complete defense to foreclosure of a materialman’s lien. An owner must not only show that full payment was actually made to the contractor, but also that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained. D & N 44-14-361 Elec., Inc. v. Underground Festival, Inc., 202 Ga. App. 435, 414 S.E.2d 891, 1991 Ga. App. LEXIS 1782 (1991). Owner must ensure lienholders are paid when lien recorded. — If a claim of lien has been ﬁled and recorded, it is incumbent upon the owner of the improved real estate to see that payments to the contractor are, to the full amount of the contract price, appropriated to the materialmen and laborers. Thompson v. Brannen Bldg. Supply, 153 Ga. App. 4, 264 S.E.2d 498, 1980 Ga. App. LEXIS 1651 (1980). Subcontractors’ liens satisﬁed even after paying contractor. — Under O.C.G.A. § 44-14-361 the owner who pays the contractor must see to it that subcontractors having liens are satisﬁed, even though the liens have not been ﬁled at the time of the payment. Green v. Farrar Lumber Co., 119 Ga. 30, 46 S.E. 62, 1903 Ga. LEXIS 11 (1903). Only one affidavit by a contractor is contemplated by O.C.G.A. § 44-14-361. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782, 1969 Ga. App. LEXIS 889 (1969). What general contractor’s affidavit must show. — The affidavit of the general contractor contemplated by O.C.G.A. § 44-14-361 requires the statement by the contractor that the agreed price has been paid; and it must appear that the owner has fulﬁlled the duty placed upon the owner by law by requiring the full contract price to be appropriated to materialmen and laborers to the extent of their claims. Whatley v. Alto Corp., 211 Ga. 718, 88 S.E.2d 398, 1955 Ga. LEXIS 440 (1955). “Agreed price or reasonable value thereof” deﬁned. — The “agreed price or reasonable value thereof” refers not to the contract price between the owner and the contractor for completing the improvement, but to the price agreed upon between the contractor and the supplier of labor, services, or materials, or the value of those. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782, 1969 Ga. App. LEXIS 889 (1969). Sworn statement is a single statement made after completion of work and before ﬁnal settlement. Massachu- 715 Owner’s Liability and Defenses (Cont’d) setts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210, 1914 Ga. LEXIS 442 (1914), writ of error dismissed, 241 U.S. 687, 36 S. Ct. 451, 60 L. Ed. 1237, 1916 U.S. LEXIS 1857 (1916). See also Waldon v. Maryland Cas. Co., 155 Ga. 76, 116 S.E. 838 (1923); Bankston v. Smith, 134 Ga. App. 882, 216 S.E.2d 634, 1975 Ga. App. LEXIS 2207 (1975), rev’d, 236 Ga. 92, 222 S.E.2d 375, 1976 Ga. LEXIS 775 (1976). Affidavit applies to realty, not personalty. — The protective affidavit under O.C.G.A. § 44-14-361 relates to the improvement of real estate, and is not for application in respect to a lien on personal property. Gibbs v. Griffin, 123 Ga. App. 385, 181 S.E.2d 285, 1971 Ga. App. LEXIS 1234 (1971). Affidavit by corporation. — Where the affidavit provided for in O.C.G.A. § 44-14-361(b) is offered in evidence, and it appears that the contractor is a corporation, such affidavit need not contain a sworn averment that the person executing the affidavit is the president of such corporation. It is sufficient if such affidavit was in fact executed by the president as a personal affidavit, and such affidavit should be admitted in evidence. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841, 1949 Ga. App. LEXIS 896 (1949) (decided prior to 1983 amendment). When owner has paid, owner needs only contractor’s affidavit of payment to lienholders. — If the owner has paid the full construction contract price the owner should have ample evidence of that and the owner would not need the contractor’s affidavit as to it to comply with O.C.G.A. § 44-14-361; what the owner does need from the contractor is an affidavit as to the contractor’s payment of the price or value of labor, services, and materials, which is something about which the owner may hold no other evidence of payment. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782, 1969 Ga. App. LEXIS 889 (1969); Certiﬁed Elec., Inc. v. Jerome, 161 Ga. App. 456, 44-14-361 288 S.E.2d 359, 1982 Ga. App. LEXIS 1913 (1982). Owner need not show more than contractor’s sworn affidavit. — Where proof of a proper affidavit under O.C.G.A. § 44-14-361(b) is made, it is not incumbent upon defendant to produce, in addition to the contractor’s sworn affidavit, evidence that the owner made full payment to the contractor and that the contractor in turn properly disbursed payment to all valid claims of materialman. Lowe’s of Ga., Inc. v. Merwin, 156 Ga. App. 876, 275 S.E.2d 812, 1981 Ga. App. LEXIS 1638 (1981) (decided prior to 1983 amendment, which rewrote subsection (b)). Owner who improves realty cannot relieve another from lien by affidavit. — There is no provision of law for one who improves real estate while the legal title or its equivalent is in that person, to relieve another from a lien on the property by the making of an affidavit as is authorized under O.C.G.A. § 44-14-361. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686, 231 S.E.2d 785, 1976 Ga. App. LEXIS 1601 (1976), aff’d, 239 Ga. 345, 236 S.E.2d 592, 1977 Ga. LEXIS 910 (1977) (decided prior to 1983 amendment, which rewrote subsection (b)). No requirement that owner investigate whether affidavit properly executed, absent evidence of irregularity. — In the absence of any evidence indicating that the owner was aware of the irregularity, or allegations and proof of fraud or collusion, the owner is not required to make an independent investigation to determine that the proper procedures were followed in the execution of the affidavit. Jackson’s Atlanta Ready Mix Concrete Co. v. Industrial Tractor Parts Co., 139 Ga. App. 422, 228 S.E.2d 324, 1976 Ga. App. LEXIS 1830 (1976) (decided prior to 1983 amendment, which rewrote subsection (b)). Materialman’s claim cannot be perfected when owner produces contractor’s affidavit. — Under O.C.G.A. § 4414-361(b), when the owner produces the affidavit of the contractor in compliance with that section, stating that all bills for 716 44-14-361 MORTGAGES, SECURITY, LIENS labor and material have been paid, the materialman’s claim against the owner by command of the statute cannot be perfected into a lien upon the property of the owner. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841, 1949 Ga. App. LEXIS 896 (1949); Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782, 1969 Ga. App. LEXIS 889 (1969) (decided prior to 1983 amendment, which rewrote subsection (b)). Contractor’s sworn statement of full payment dissolves liens. — The liens provided for in O.C.G.A. § 44-14-361 are dissolved where the owner produces a sworn statement of the contractor, or other person, at whose instance the work was done or material furnished, or such services furnished or rendered, that the agreed price or reasonable value thereof has been paid. Jackson’s Atlanta Ready Mix Concrete Co. v. Industrial Tractor Parts Co., 139 Ga. App. 422, 228 S.E.2d 324, 1976 Ga. App. LEXIS 1830 (1976) (decided prior to 1983 amendment, which rewrote subsection (b)). When owner can raise certiﬁcate from contractor that price was paid. — O.C.G.A. § 44-14-361(b), which gives an owner a defense against the obtaining of a lien by a laborer or materialman where the owner has obtained a certiﬁcate from the contractor or other person at whose instance the work was done that the agreed price or the reasonable value of the material and labor furnished has been paid, contemplates a relationship between the contractor and owner wherein the contractor contracts for material and labor singularly and independently and for which the owner could not and would not be liable in the ﬁrst instance. Fitts v. Addis, 83 Ga. App. 696, 64 S.E.2d 466, 1951 Ga. App. LEXIS 942 (1951) (decided prior to 1983 amendment, which rewrote subsection (b)). How owners may defend against action to foreclose materialman’s lien. — In an action by a materialman to foreclose a lien for material furnished a contractor for the improvement of real estate of others, the owners of such real estate may defend by showing that they have paid the full contract price to the 44-14-361 contractor and that the money paid has been applied by the contractor to the settlement of debts incurred in the performance of the contract, which would have been liens upon the property improved. Ingram v. Barﬁeld, 80 Ga. App. 276, 55 S.E.2d 725, 1949 Ga. App. LEXIS 821 (1949). How owner may defeat liens when independent contractor erects building. — When an independent contractor, in fact as well as in name, erects a building the owner may defeat liens by showing that the owner has paid in good faith the full amount of the contract price in discharge of valid liens against the premises. Robinson v. Reese, 175 Ga. 574, 165 S.E. 744, 1932 Ga. LEXIS 293 (1932). Owner may defend by showing full payment to contractor. — In a suit by a materialman to foreclose a lien for material furnished a contractor for the improvement of real estate of others, the owners of such real estate may defend by showing that they have paid the full contract price to the contractor and that the money paid has been applied by the contractor to the settlement of debts incurred in the performance of the contract, which would have been liens upon the property improved. Davenport Bros. v. Pepper, 108 Ga. App. 372, 133 S.E.2d 54, 1963 Ga. App. LEXIS 648 (1963). Mistake in contract between contractor and lessee not a defense. — Where corporate lessee ratiﬁed a contract executed by its president with the unpaid contractor and had used the equipment installed, the lien of the contractor attached to lessor’s property even though the president had mistakenly signed the contract as president of a nonexistent entity. Underground Festival, Inc. v. McAfee Eng’r Co., 214 Ga. App. 243, 447 S.E.2d 683, 1994 Ga. App. LEXIS 849 (1994), cert. denied, No. S94C1816, 1994 Ga. LEXIS 1181 (Ga. Dec. 2, 1994). No defense that total of liens exceeds contract price. — It is no defense to the foreclosure of a materialman’s lien that other materialmen may claim liens which, if added to the amount claimed in the foreclosure suit and the payments made to the contractor, and properly ap- 717 Owner’s Liability and Defenses (Cont’d) plied by him, would exceed the contract price. Tuck v. Moss Mfg. Co., 127 Ga. 729, 56 S.E. 1001, 1907 Ga. LEXIS 469 (1907). Presence of other liens no defense until such other liens are paid. — The fact that, in an action to foreclose on a materialman’s lien, there are other such liens outstanding is not a defense unless and until such liens have been paid. Roberts v. Georgia S. Supply Co., 92 Ga. App. 303, 88 S.E.2d 554, 1955 Ga. App. LEXIS 583 (1955). Possible additional claims in excess of contract price no defense. — That there may be other claims of lien in an amount in excess of that portion of the contract price not applied to payment of valid claims for labor and materials is no defense to a lien properly asserted. Solomon v. Robert Spector Lumber Co., 109 Ga. App. 801, 137 S.E.2d 473, 1964 Ga. App. LEXIS 998 (1964). For case where owner’s compliance with O.C.G.A. § 44-14-361 justiﬁed summary judgment, see Lowe’s of Ga., Inc. v. Merwin, 156 Ga. App. 876, 275 S.E.2d 812, 1981 Ga. App. LEXIS 1638 (1981). Foreclosure Requirements for foreclosure of materialman. — A materialman or subcontractor, in order to foreclose a lien must have a judgment against the contractor or join the contractor in the suit to foreclose. Lombard v. Trustees of Young Men’s Library Ass’n Fund, 73 Ga. 322, 1884 Ga. LEXIS 123 (1884); Royal v. McPhail, 97 Ga. 457, 25 S.E. 512, 1895 Ga. LEXIS 503 (1895); Clayton v. Farrar Lumber Co., 119 Ga. 37, 45 S.E. 723, 1903 Ga. LEXIS 13 (1903); Buck v. Tifton Mfg. Co., 4 Ga. App. 695, 62 S.E. 107, 1908 Ga. App. LEXIS 511 (1908). No foreclosure against owner without judgment against contractor. — Where a lien upon the premises improved by the furnishing of materials by a materialman to a contractor is claimed by the materialman, under O.C.G.A. § 44-14361, it is necessary, in order to foreclose such lien, that the materialman have a 44-14-361 judgment against the contractor. Gibbs v. Carolina Portland Cement Co., 50 Ga. App. 229, 177 S.E. 760, 1934 Ga. App. LEXIS 714 (1934). There can be no valid foreclosure of a materialman’s lien for material furnished to a contractor and used in improving the real estate of another person against which the lien is claimed in the absence of a judgment in favor of the materialman against the contractor for the price or value of such material. Smith v. Walker, 194 Ga. 586, 22 S.E.2d 160, 1942 Ga. LEXIS 630 (1942). Except when owner brings action in equity against both. — In general, judgment against the contractor or action against the contractor is a necessary incident to the foreclosure of a materialman’s lien. This is not true where the owner has brought an action in equity against both contractor and materialman to enjoin foreclosure. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210, 1914 Ga. LEXIS 442 (1914), writ of error dismissed, 241 U.S. 687, 36 S. Ct. 451, 60 L. Ed. 1237, 1916 U.S. LEXIS 1857 (1916). Lack of title in defendant not bar to foreclosure. — Want of title in the defendant to the premises on which the lien is claimed, and alleged title in a third person who is no party to the action will not bar an action for foreclosing and enforcing the lien under O.C.G.A. § 44-14-361. Ford v. Wilson & Co., 85 Ga. 109, 11 S.E. 559, 1890 Ga. LEXIS 5 (1890). Time limit for materialman’s action. — One of the conditions precedent to the foreclosure of the liens speciﬁed in O.C.G.A. § 44-14-361 is that action must be brought by the laborer or materialman against the person with whom the debt was contracted, either the owner or the contractor, as the case may be, within 12 months from the time when the debt became due. Jordan Co. v. Adkins, 105 Ga. App. 157, 123 S.E.2d 731, 1961 Ga. App. LEXIS 583 (1961); Allied Asphalt Co. v. Cumbie, 134 Ga. App. 960, 216 S.E.2d 659, 1975 Ga. App. LEXIS 2228 (1975). Lien must be recorded and foreclosed within statutory periods. — In giving to the materialman a lien, O.C.G.A. § 44-14-361 expressly states that in order 718 44-14-361 MORTGAGES, SECURITY, LIENS to make good a lien the materialman must both record and foreclose within the statutory periods. The record of the lien in time is no more essential to its creation than its foreclosure in time, and the lien comes into potential existence only when the statute is satisﬁed. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137, 1935 Ga. LEXIS 501 (1935). Proceedings and averment should reﬂect one-year time limit. — O.C.G.A. § 44-14-361 requires that the materialman should make demand, and prosecute the collection of the claim, within 12 months after the same shall become due and payable. The materialman should aver that demand was made within the time, and the materialman’s proceedings to collect should be, on their face, within the time limited. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137, 1935 Ga. LEXIS 501 (1935). Effect on title of failure to pursue action for claim within year. — Where no action predicated upon the claim of lien is instituted in 12 months, no lien is created upon the real estate and building as against the title of the claimant. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137, 1935 Ga. LEXIS 501 (1935). Materialman’s lien inchoate until perfected by judgment. — The lien provided for in favor of a materialman is not absolute, but must be completed, made good, or perfected in accordance with the provisions of O.C.G.A. § 44-14-362. It is only inchoate or incipient until a judgment ﬁnally perfects it. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 338, 18 S.E.2d 61 (1941). Delivery dates under one contract cannot be used to perfect lien under other contract. — Where an owner of real estate makes an express contract with a contractor for heating equipment, and before the work is ﬁnished makes a separate and distinct contract for plumbing, the items furnished under each are separate and distinct, and the delivery dates under one contract may not be used for the purpose of perfecting a lien under the other; aliter, if all the material be furnished under one and the same contract. Crane Co. v. Hirsch, 61 Ga. App. 632, 7 S.E.2d 83, 1940 Ga. App. LEXIS 200 (1940). 44-14-361 Where tenant makes a contract for plumbing, ratiﬁcation thereof by the owner does not make the plumbing contract a part of earlier heating contract. Therefore, the delivery date of an article under the plumbing contract cannot be used to determine the time when the lien for the heating material should be ﬁled. Crane Co. v. Hirsch, 61 Ga. App. 632, 7 S.E.2d 83, 1940 Ga. App. LEXIS 200 (1940). Failure to perfect vitiates lien. — Before the rendition of a judgment in favor of a materialman’s lien claimant the claimed lien is only inchoate, and the failure of the claimant to perfect the lien as provided by O.C.G.A. § 44-14-361.1 vitiates it, not only as against third persons, but as against the claimant. CarterMoss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61, 1941 Ga. App. LEXIS 209 (1941). Justice of the peace court is without jurisdiction to enforce lien given by O.C.G.A. § 44-14-361. McAuliffe v. Baum, 142 Ga. 590, 83 S.E. 239, 1914 Ga. LEXIS 464 (1914). Lien cannot be divided into portions for separate actions in justice of the peace court. — An entire lien claimed by a materialman, and recorded in accordance with O.C.G.A. § 44-14-361, cannot be enforced by dividing the amount and giving notes of less than $100.00 each and suing them in a court. O.C.G.A. § 4414-361 contemplates but a single lien as to each transaction and a single action to enforce it. Bell & Bro. v. Rich, 73 Ga. 240, 1884 Ga. LEXIS 108 (1884). Enforcement of property lien when recipient of supplies is not owner. — Where a materialman undertakes to foreclose a lien for material furnished to a contractor or some person other than the owner for the improvement of the owner’s real property, it is necessary for the materialman to obtain a money verdict against the contractor or person to whom the materials are supplied in order to enforce the lien against the property improved. Spector v. Model Constr. Co., 95 Ga. App. 14, 96 S.E.2d 900, 1957 Ga. App. LEXIS 700 (1957). Foreclosure proceedings differ from those for condominium assessments. — The foreclosure proceedings set forth in O.C.G.A. § 44-3-109 for condo- 719 Foreclosure (Cont’d) minium assessments are simpliﬁed, and distinct from the proceedings for the creation and enforcement of other types of liens. Propes v. Stonington Homeowners Ass’n, 149 Ga. App. 135, 253 S.E.2d 813, 1979 Ga. App. LEXIS 1755 (1979). Only foreclosure proceedings in lien for assessments must be same as for other improvement liens. — The sole requirements for creation of the lien for assessments are contained in O.C.G.A. § 44-3-109, and it is only the actual foreclosure proceedings which must be in the same manner as other liens for the improvement of real property. Thus, the judgment and execution of the lien must be entered by the appropriate superior court. Propes v. Stonington Homeowners Ass’n, 149 Ga. App. 135, 253 S.E.2d 813, 1979 Ga. App. LEXIS 1755 (1979). Materialman’s failure to ﬁle notice of action against contractor renders claim unenforceable. — Insofar as O.C.G.A. § 44-14-361.1 provides that, notwithstanding certain exceptions, it is incumbent upon the party asserting the lien to ﬁle an action or obtain judgment against the contractor as a prerequisite to enforcing a lien against the property so improved, following which said party may, subject to the provision of O.C.G.A. § 4414-361, enforce lien directly against the property so improved, in an action against the owner thereof, materialman’s failure to ﬁle notice of an action against the contractor renders its claim of lien unenforceable. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579, 271 S.E.2d 712, 1980 Ga. App. LEXIS 2685 (1980). Proper to join owner and contractor when enforcing lien against owner. — It is proper practice for one seeking to enforce against the owner of real estate a lien for labor and material, arising under O.C.G.A. § 44-14-361, to join in an action the owner of the realty and the person who contracted with the latter for the erection of the building thereon. Millers Nat’l Ins. Co. v. Hatcher, 194 Ga. 449, 22 S.E.2d 99, 1942 Ga. LEXIS 614 (1942). What complaint for foreclosure must show. — A complaint seeking to foreclose the lien of a laborer and mate- 44-14-361 rialman created under the provisions of O.C.G.A. § 44-14-361 must affirmatively show that all of the conditions precedent set forth in O.C.G.A. § 44-14-361.1 have been complied with or that the case is within one of the exceptions made by the various amendments to O.C.G.A. § 44-14361.1(3). Jordan Co. v. Adkins, 105 Ga. App. 157, 123 S.E.2d 731, 1961 Ga. App. LEXIS 583 (1961). In order to render real property subject to foreclosure for material supplied, it must appear that the articles alleged to be lienable under O.C.G.A. § 44-14-361 have become ﬁxtures. Accordingly, the furnishing of chattels used as loose, movable articles will not entitle a person to a lien, even though they were furnished under a contract which included materials for the construction of the building in which they are used. Skandia Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279, 277 S.E.2d 282, 1981 Ga. App. LEXIS 1781 (1981). Proof needed to foreclose lien for improvement of realty. — Where materials for improvement of real estate are furnished to the owner, the materialman may foreclose the lien by alleging and proving that the materials were supplied the owner for that purpose. Spector v. Model Constr. Co., 95 Ga. App. 14, 96 S.E.2d 900, 1957 Ga. App. LEXIS 700 (1957). What supplier must show to recover on mechanic’s lien for material furnished. — In order to recover on a mechanic’s lien for material furnished, it is necessary to show that speciﬁc material of the value alleged was delivered on the property and that it was consumed in the construction of the improvement. United Bonding Ins. Co. v. Good-Wynn Elec. Supply Co., 124 Ga. App. 545, 184 S.E.2d 508, 1971 Ga. App. LEXIS 1015 (1971). Complaint for foreclosure insufficient unless contract with owner shown. — Complaint which fails to show that there was a contract with the owner of the property, or that the owner adopted the contract as one made for the owner, so as to bring the owner into contractual relations with the contractor furnishing the materials, does not state a cause of 720 44-14-361 MORTGAGES, SECURITY, LIENS action for the foreclosure of a materialman’s lien. Marshall v. Peacock, 205 Ga. 891, 55 S.E.2d 354, 1949 Ga. LEXIS 600 (1949). Complaint which does not allege contract or amount subject to dismissal. — In the absence of allegations of a contract, and the amount to be paid under the contract for materials, a complaint in an action to establish a materialman’s lien fails to state a cause of action for any affirmative relief and a trial judge does not err in sustaining the general demurrers (now motions to dismiss). Lumber Fabricators, Inc. v. Gregory, 213 Ga. 356, 99 S.E.2d 145, 1957 Ga. LEXIS 382 (1957). Where complaint does not allege any contractual relation between individual and real estate company in connection with improvements alleged to have been made, so as to allege that the individual comes within the meaning of “some person other than the owner,” the complaint alleges that the individual was a stranger as to the company. Morgan v. May Realty Co., 86 Ga. App. 261, 71 S.E.2d 438, 1952 Ga. App. LEXIS 928 (1952). Failure to allege claim recorded. — A complaint, by a materialman, does not set out a cause of action for a judgment establishing a lien upon the property improved, where it is not alleged that a claim of lien has been ﬁled and recorded as required by O.C.G.A. §§ 44-14-361 and 44-14-361.1. King v.