Preserving mechanic’s lien claims

1. Notice of commencement

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

1. The legal description of the real property on which the improvement is to be made. for purposes of this division, 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.
2. A brief description of the improvement to be performed on the property containing sufficient specificity to permit lien claimants to identify the improvements;
3. The name, address, and capacity of the owner, part owner, or lessee of the real property contracting for the improvement;
4. 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;
5. The name and address of the owner's, part owner's, or lessee's designee, if any;
6. The name and address of all original contractors, except that if the notice of commencement is recorded for an improvement involving a single- or double-family dwelling and if more than one original contractor is involved, instead of listing each original contractor, the owner shall state that multiple original contractors are involved in the improvement;
7. The date the owner, part owner, or lessee first executed a contract with an original contractor for the improvement;
8. The name and address of all lending institutions which provide financing for the improvements, if any;
9. 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;
10. 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."

11. The name and address of the person preparing the notice;
12. 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) provide 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.

If the owner fails to prepare and file a notice of commencement, lien claimants are not obligated to file notice of furnishings.

2. Notice of furnishing

Any potential lien claimant must prepare and provide to the owner (or the owner's designee) a notice of furnishing in order to protect its lien rights. The notice of furnishing must ne served on the owner within 21 days of the supply of labor or materials to the project.

The notice of furnishing must contain the following information: (a) the name of the owner or the owner's designee; (b) the name and address of the original contractor under which the claimant is performing work or supplying materials; (c) the name and address of the contractor the claimant has a contract with; (d) a reasonable identification of the property; (e) the date the labor or supplies were first provided, and (f) the name and address of the claimant. See form attached.

The notice of furnishing goes back 21 days, to protect any labor or supplies provided 21 days before the service of the notice of furnishing. Failure to serve the notice of furnishing results in forfeiture of lien rights.

If you're late to serve the notice of furnishing, but you are still working or you have worked within the last 21 days, file the notice of furnishing. Then, all work performed 21 days before the service of the notice of furnishing will be protected.

If you failed to file the notice of furnishing and your work is done, make a formal request for a notice of commencement from the owner, by certified mail. If the owner doers not respond within 10 days after receipt, the requirement to serve the notice of furnishing may be excused.

3. Affidavit of mechanic’s lien

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

The affidavit of mechanic's 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 to 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. Form attached.

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 a oil, gas, or injection well (120 days).

When is the last day for a materialman 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 test is need. Was the material needed to complete the job? If so, lien may be filed within 75 days of delivery.

 4.      Service 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).

Return to Construction Law page

Fortney & Klingshirn
4040 Embassy Parkway, Suite 280
Akron, Ohio 44333
telephone 330-665-5445 - fax 665-5446