Lien Affidavit

posted by Michael Fortney  |  Jan 5, 2010 9:44 PM in Construction Law

Requirements of a Lien Affidavit

In the event that the contract is breached and payment is not received, an affidavit for mechanics’ lien may be filed to place a lien on the project.  

The affidavit of mechanics’ lien must include (a) the amount due over and above all set-offs, (b) a description of the property subject to the lien, (c) the name and address of the person for whom the work was performed or the material provided, (d) the name and address of the owner, (e) the name and address of the lien claimant, and (f) the first and last dates that work was performed or supplies were provided.  

The lien must be filed with the county recorder's office where the project is located within 75 days of the date last worked on the project, unless the lien is for a residential dwelling (60 days) or an oil, gas, or injection well (120 days).  1311.06(B).

When is the last day for a material supplier or contractor?  

A contractor's last day of work is when its job is complete.  Therefore, punchlist work will qualify for extending the last day worked, whereas warranty work will not.  

For material suppliers the general test is when the materials were delivered to the project.

How do you serve the Affidavit of mechanic's lien?

Filing the lien is only half of what needs to be done to perfect the lien.  After it is filed, the lien must be served on the owner within 30 days of filing with the county recorder.  Service of the lien must be by some method whereby evidence of receipt by the owner may be established (overnight delivery, certified mail). 

Service of the affidavit (and Notices of Furnishing and Commencement) can be made by: (a) sheriff, (b) any method which includes a written evidence of receipt (certified mail, overnight delivery, hand- delivery) and (c) upon corporations by delivery to its statutory agent. R.C. 1311.19(A)

Service of mechanics’ lien is deemed complete upon receipt.  For Notice of Furnishing, service is deemed complete on the date of mailing.  If service of the affidavit or Notice of Furnishing is attempted on the owner at the address listed in the Notice of Commencement and returned unclaimed or refused, service is complete when first attempted.  R.C. 1311.19(B).

If service of the affidavit by these methods fails within the 30 day service period, the lien claimant has an additional 10 day period within which it can perfect service by physically posting a copy of the lien in a conspicuous place on the improvement.

If lien claimant does not comply with the statutorily authorized means of service, service is complete if either (a) the person served acknowledges receipt or (b) it can be proved by a preponderance of the evidence that the person being served actually received service.  R.C. 1311.19(C).

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