Notice of Commencement

posted by Michael Fortney  |  Jan 5, 2010 9:39 PM in Construction Law

In order to protect the owner and mandate notice to the owner of potential lien claimants, the Notice of Commencement must be prepared and filed before the project commences.

The Notice of Commencement must be in affidavit form and include:

(a) The legal description of the real property on which the improvement is to be made.  For purposes of a Notice of Commencement, a description sufficient to describe the real property for the purpose of conveyance, or contained in the instrument by which the owner, part owner, or lessee took title, is a legal description;

(b) A brief description of the improvement to be performed on the property containing sufficient specificity to permit lien claimants to identify the improvements;

(c) The name, address, and capacity of the owner, part owner, or lessee of the real property contracting for the improvement;

(d) The name and address of the fee owner of the real property, if the person contracting for the improvement is a land contract vendee or lessee;

(e) The name and address of the owner's, part owner's, or lessee's designee, if any;

(f) The name and address of all original contractors,

(g) The date the owner, part owner, or lessee first executed a contract with an original contractor for the improvement;

(h) The name and address of all lending institutions which provide financing for the improvements, if any;

(i) The name and address of all sureties on any bond which guarantee payment of the original contractor's obligations under the contract for the improvement, if any;

(j) The following statement:

"To Lien Claimants and Subsequent Purchasers:

Take notice that labor or work is about to begin on or materials are about to be furnished for an improvement to the real property described in this instrument.  A person having a mechanics' lien may preserve the lien by providing a Notice of Furnishing to the above-named designee and his original contractor, if any, and by timely recording an affidavit pursuant to section 1311.06 of the Revised Code.

A copy of this notice may be obtained upon making a written request by certified mail to the above-named owner, part owner, lessee, designee, or the person with whom you have contracted.

(k) The name and address of the person preparing the notice;

(l) An affidavit of the owner, part owner, or lessee or the agent of the owner, part owner, or lessee which verifies the notice.

The owner must do the following with the prepared Notice of Commencement:  (a) file the notice of commencement with the county recorder's office in the county where the project is located; (b) serve a copy of the Notice of Commencement to the original contractor(s); (c) post the Notice of Commencement at the project site; (d) amend the Notice of Commencement to add any additional original contractors during the project; and (e) provide copies of the Notice of Commencement to any potential lien claimant requesting a copy.

No Notice of Commencement is required for home construction contracts, unless required by a lender as part of the project financing.  The lender’s requirement does not rise to an obligation to a lien claimant who has a contract with the original contractor to serve a Notice of Furnishing.  R.C. 1311.04(O); 1311.05(I).

Notices of Commencement expire after six years unless the notice or an amendment to the notice states otherwise.

Contact Michael Fortney

Michael Fortney
Michael Fortney
Construction Law, Employment and Labor Law, Business Law, Litigation, Arbitration

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