TITLE
13
CHAPTER 11
1311.01 Definitions
1311.011
No Lien for Home Construction Contract Work if Owner Paid
Original Contractor in Full, Conditions, Affidavit of Payment,
Limitation of Amount of Home Construction Liens, Priorities,
Duty to Release Claim of Lien, Payments from Construction
Loans, Affidavit of Payment, Joint Payment, Release Bond
1311.02 Persons Who Have Liens
1311.021 Oil and Gas Lien, Enforcement, Priorities, Joint
Payment
1311.03 Liens for Street, Drain, and Similar Work
1311.04 Notice of Commencement, Recording, Service, Posting
1311.05 Notice of Furnishing, Service, Exclusions, Exemptions
1311.06 Affidavit for Mechanics Lien, Form, Recording
1311.07 Service of Affidavit of Mechanics Lien
1311.08 Liens on Separate Lots
1311.09 Defective Title, Property Held by Vendee
1311.10 Presumptions as to Agency
1311.11 Notice to Commence Suit, Service, Limitations, Release
Bond, Approval, Discharge
1311.12 Conditions to Effectiveness of Mechanics Lien Claim,
Presumptions
1311.13 Priority of Mechanics Liens, Limitations, Priorities
Among Liens
1311.14 Priority of Mortgages Securing Construction Loans,
Notice to Mortgagee, Payments from Construction Loan Account,
Priorities
1311.15 Priorities, Payments of Lien Claims, Setoff
1311.16 Judgment, Attorneys Fees
1311.17 Part Performance
1311.18 Separation of Property
1311.19 Methods of Service
1311.20 Failure to Release Lien, Damages
1311.21 Assignments, Parties, Lis Pendens
1311.22 Liberal Construction
1311.23 Coal Mining Liens
1311.25 Public Improvements, Definitions
1311.251 Claim for Materials Incorporated in Public Improvement,
Presumptions, Claims for Tools or Machinery
1311.252 Notice of Commencement of Public Work
1311.26 Affidavit of Work or Material for Public Improvement
1311.261 Notice of Furnishing, Service
1311.28 Detained Funds
1311.29 Recording Affidavit, Preferences, Priorities
1311.31 Notice of Intention to Dispute Claim, Timing, Requirements,
Pro Rata Shares
1311.311 Notice to Commence Suit, Limitations, Release Bond,
Suit, Attorneys Fees
1311.32 Action to Recover Claim
1311.34 Liens for Wages
1311.35 Itemized Statement of Labor Performed, Recording
1311.36 Foreclosure Procedure, Priorities
1311.37 Indirect Labor
OHIO STATUTES
TITLE 13
CHAPTER 11
1311.01 Definitions
As used in sections 1311.01 to 1311.22 of the Revised Code:
(A) “Owner,” “part owner,”
or “lessee” includes all the interests either
legal or equitable, which such person may have in the real
estate upon which the improvements are made, including the
interests held by any person under contracts of purchase,
whether in writing or otherwise.
(B) “Materialman” includes any person by whom
any materials are furnished in furtherance of an improvement.
(C) “Laborer” includes any mechanic, workman,
artisan, or other individual who performs labor or work in
furtherance of any improvement.
(D) “Subcontractor” includes any person who undertakes
to construct, alter, erect, improve, repair, demolish, remove,
dig, or drill any part of any improvement under a contract
with any person other than the owner, part owner, or lessee.
(E) “Original contractor,” except as otherwise
provided in section 1311.011 of the Revised Code, includes
a construction manager and any person who undertakes to construct,
alter, erect, improve, repair, demolish, remove, dig, or drill
any part of any improvement under a contract with an owner,
part owner, or lessee.
(F) “Construction manager” means a person with
substantial discretion and authority to manage or direct an
improvement, provided that the person is in direct privity
of contract with the owner, part owner, or lessee of the improvement.
(G) “Notice of commencement” means the notice
specified in section 1311.04 of the Revised Code.
(H) “Notice of furnishing” means the notice specified
in section 1311.05 of the Revised Code.
(I) “Materials” means all products and substances
including, without limitation, any gasoline, lubricating oil,
petroleum products, powder, dynamite, blasting supplies and
other explosives, tools, equipment, or machinery furnished
in furtherance of an improvement.
(J) “Improvement” means constructing, erecting,
altering, repairing, demolishing, or removing any building
or appurtenance thereto, fixture, bridge, or other structure,
and any gas pipeline or well including, but not limited to,
a well drilled or constructed for the production of oil or
gas; the furnishing of tile for the drainage of any lot or
land; the enhancement or embellishment of real property by
seeding, sodding, or the planting thereon of any shrubs, trees,
plants, vines, small fruits, flowers, or nursery stock of
any kind; and the grading or filling to establish a grade.
(K) “Wages” means the basic hourly rate of pay
and all other contractually owed benefits.
Effective Date: 07/01/96
1311.011 No Lien for Home Construction
Contract Work if Owner Paid Original Contractor in Full, Conditions,
Affidavit of Payment, Limitation of Amount of Home Construction
Liens, Priorities, Duty to Release Claim of Lien, Payments
from Construction Loans, Affidavit of Payment, Joint Payment,
Release Bond
(A) As used in this section:
(1) “Home construction contract” means a contract
entered into between an original contractor and an owner,
part owner, or lessee for the improvement of any single- or
double-family dwelling or portion of the dwelling or a residential
unit of any condominium property that has been submitted to
the provisions of Chapter 5311. of the Revised Code; an addition
to any land; or the improvement of driveways, sidewalks, swimming
pools, porches, garages, carports, landscaping, fences, fallout
shelters, siding, roofing, storm windows, awnings, and other
improvements that are adjacent to single- or double-family
dwellings or upon lands that are adjacent to single- or double-family
dwellings or residential units of condominium property, if
the dwelling, residential unit of condominium property, or
land is used or is intended to be used as a personal residence
by the owner, part owner, or lessee.
(2) “Home purchase contract” means a contract
for the purchase of any single- or double-family dwelling
or residential unit of a condominium property that has been
subjected to the provisions of Chapter 5311. of the Revised
Code if the purchaser uses or intends to use the dwelling,
a unit of a double dwelling, or the condominium unit as his
personal residence.
(3) “Lending institution” means any person that
enters into a contract with the owner, part owner, purchaser,
or lessee to provide financing for a home construction contract
or a home purchase contract, which financing is secured, in
whole or in part, by a mortgage on the real estate upon which
the improvements contemplated by the home construction contract
are to be made or upon the property that is the subject of
the home purchase contract, and that makes direct disbursements
under the contract to any original contractor or the owner,
part owner, purchaser, or lessee.
(4) “Original contractor” includes any person
with whom the owner, part owner, lessee, or purchaser under
a home purchase contract or a home construction contract has
directly contracted.
(B) Notwithstanding sections 1311.02 to 1311.22 of the Revised
Code, all liens, except mortgage liens, that secure payment
for labor or work performed or materials furnished in connection
with a home construction contract or in connection with a
dwelling or residential unit of condominium property, that
is the subject of a home purchase contract are subject to
the following conditions:
(1) No original contractor, subcontractor, materialman, or
laborer has a lien to secure payment for labor or work performed
or materials furnished by the contractor, subcontractor, materialman,
or laborer, in connection with a home construction contract
between the original contractor and the owner, part owner,
or lessee or in connection with a dwelling or residential
unit of condominium property, that is the subject of a home
purchase contract, if the owner, part owner, or lessee paid
the original contractor in full or if the purchaser has paid
in full for the amount of the home construction or home purchase
contract price, and the payment was made prior to the owner’s,
part owner’s, or lessee’s receipt of a copy of
an affidavit of mechanics’ lien pursuant to section
1311.07 of the Revised Code.
An owner, part owner, or lessee may file with the county recorder
of the county in which the property that is the subject of
a home construction contract or a home purchase contract is
situated an affidavit that the owner, part owner, or lessee
has made payment in accordance with this division. Except
if the owner, part owner, or lessee is guilty of fraud, any
lien perfected on the property by any subcontractor, materialman,
or laborer for labor or work performed or for materials furnished
is void and the property wholly discharged from the lien,
if the lien was perfected after full payment was made in accordance
with this division. The recorder shall index and record the
affidavit in the same manner that releases of mortgages and
other liens are indexed and recorded, and shall receive the
same fees for indexing and recording the affidavit that are
provided for the recording of leases.
Nothing in this section shall adversely affect a mechanics’
lien claimed against a prior owner if the lien is perfected
prior to a conveyance under a home purchase contract.
(2) If the original contractor has not been paid in full as
provided in division (B)(1) of this section, no subcontractor,
materialman, or laborer has a lien to secure payment for labor
or work performed or materials furnished by the subcontractor,
materialman, or laborer for an amount greater than the amount
due under the home construction contract that has not been
paid to the original contractor for the work, labor, or materials
or for an amount greater than the amount of the home purchase
contract price that has not been paid to the original contractor.
The total amount of all liens for labor or work performed
or for materials furnished in connection with a home construction
contract that may be enforced in lien foreclosure proceedings
shall not exceed the amount due under the home construction
contract that has not been paid to the original contractor
or the amount due under the home purchase contract that has
not been paid to the original contractor.
If the amount due under the home construction contract or
under the home purchase contract to the original contractor
is insufficient to secure the mechanics’ liens of all
lien claimants that arose out of the home construction contract
or that arose out of a contract in connection with a dwelling
or residential unit of condominium property, that is the subject
of a home purchase contract, each mechanics’ lien shall
be secured by a pro rata share of the amount due to the original
contractor, except that mechanics’ liens filed by laborers
have priority. The pro rata share shall be equal to the monetary
amount of the amount due to the original contractor that is
subject to all valid mechanics’ liens on the property
that is the subject of the home purchase contract or all valid
mechanics’ liens under the home construction contract
multiplied by a fraction in which the denominator is the total
monetary amount of all valid mechanics’ liens on the
property that is the subject of the home purchase contract
or of all valid mechanics’ liens that arose out of the
home construction contract, and the numerator is the amount
claimed to be due by the lien claimant under a contract in
connection with a dwelling or residential unit of condominium
property, that is the subject of the home purchase contract
or under the home construction contract.
For the purpose of this section, the amount due under a home
construction contract or a home purchase contract is the unpaid
balance under the home construction contract or the home purchase
contract, minus the cost to complete the contract according
to its terms and conditions, including any warranty or repair
work.
(3) If, after receiving written notice from an owner, part
owner, purchaser, or lessee that full payment has been made
by the owner, part owner, purchaser, or lessee to the original
contractor for the amount of the home construction or home
purchase contract and that payment was made prior to the owner’s,
part owner’s, or lessee’s receipt of a copy of
an affidavit of mechanics’ lien pursuant to section
1311.07 of the Revised Code, the lienholder fails within thirty
days after receipt of the notice to cause the lien securing
payment for the work, labor, or materials to be released of
record, the lienholder is liable to the owner, part owner,
or lessee for all damages arising from the lienholder’s
failure to cause the lien to be released.
(4) No lending institution shall make any payment to any original
contractor until the original contractor has given the lending
institution the original contractor’s affidavit stating:
(a) That the original contractor has paid in full for all
labor and work performed and for all materials furnished by
the original contractor and all subcontractors, materialmen,
and laborers prior to the date of the closing of the purchase
or during and prior to the payment period, except such unpaid
claims as the original contractor specifically sets forth
and identifies both by claimant and by amount claimed;
(b) That no claims exist other than those claims set forth
and identified in the affidavit required by division (B)(4)
of this section.
(5) When making any payment under the home construction contract
or on behalf of the owner or part owner under a home purchase
contract, the lending institution may accept the affidavit
of the original contractor required by division (B)(4) of
this section and act in reliance upon it, unless it appears
to be fraudulent on its face. The lending institution is not
financially liable to the owner, part owner, purchaser, lessee,
or any other person for any payments, except for gross negligence
or fraud committed by the lending institution in making any
payment to the original contractor.
After receipt of a written notice of a claim of a right to
a mechanic’s lien by a lending institution, failure
of the lending institution to obtain a lien release from the
subcontractor, materialman, or laborer who serves notice of
such claim is prima-facie evidence of gross negligence.
(6) Any owner, part owner, purchaser, or lessee, who requests
an original contractor to supply the affidavit required by
division (B)(4) of this section, may withhold any payment
that is due under the home construction contract or under
the home purchase contract until the original contractor provides
the owner, part owner, purchaser, or lessee with the affidavit.
The owner’s, part owner’s, purchaser’s,
or lessee’s remedies and rights under this section shall
not be prejudiced by the owner’s, part owner’s,
purchaser’s, or lessee’s failure to request or
to obtain the affidavit provided for in division (B)(4) of
this section.
(7) An owner, part owner, purchaser, lessee, or lending institution
may make payment jointly to the original contractor and to
a subcontractor, materialman, or laborer as a condition to
their giving lien releases.
(8) If a subcontractor, materialman, or laborer refuses to
supply a lien release to the original contractor, owner, part
owner, lessee, or lending institution because the amount of
money that the original contractor owes the subcontractor,
materialman, or laborer is in dispute, the owner, part owner,
lessee, and lending institution shall withhold from payment
to the original contractor an amount of money equal to the
amount of money claimed by the subcontractor, materialman,
or laborer. If a subcontractor, materialman, or laborer refuses
within ten days after receipt of a written request from either
the original contractor or the lending institution to state
the amount due and the last date that the lien claimant performed
any labor or work or furnished any material in furtherance
of the improvement which gives rise to the lien claimant’s
lien claim, the amount and the last date shall be stated by
the original contractor. The owner, part owner, lessee, and
lending institution shall pay the withheld amount of money
to the original contractor when any of the following occur:
(a) The subcontractor, materialman, or laborer gives written
notice to the owner, part owner, lessee, or lending institution
that the amount of money claimed to be due has been paid.
(b) The subcontractor, materialman, or laborer delivers a
lien release to the original contractor, owner, part owner,
lessee, or lending institution.
(c) The original contractor provides the subcontractor, materialman,
or laborer with a bond, in a form that is satisfactory to
the owner, part owner, lessee, or lending institution and
in an amount equal to the amount of money claimed to be due.
(d) The time for filing a lien by the subcontractor, materialman,
or laborer has expired and no affidavit of lien has been recorded
pursuant to section 1311.06 of the Revised Code.
(9) Any lien release given pursuant to this section is valid
and enforceable without separate consideration for the release.
Effective Date: 07/01/96
1311.02
Persons Who Have Liens
Every person who performs work or labor upon or furnishes
material in furtherance of any improvement undertaken by virtue
of a contract, express or implied, with the owner, part owner,
or lessee of any interest in real estate, or his authorized
agent, and every person who as a subcontractor, laborer, or
material man, performs any labor or work or furnishes any
material to an original contractor or any subcontractor, in
carrying forward, performing, or completing any improvement,
has a lien to secure the payment therefore upon the improvement
and all interests that the owner, part owner, or lessee may
have or subsequently acquire in the land or leasehold to which
the improvement was made or removed.
Effective Date: 04/10/91
1311.021
Oil and Gas Lien, Enforcement, Priorities, Joint Payment
(A) Every person who performs any labor or work upon or furnishes
material for digging, drilling, boring, operating, completing,
or repairing, any well drilled or constructed for the production
of oil or gas or any injection well which furthers the production
of oil and gas or which disposes of waste products generated
by oil and gas operations, or for altering, repairing, or
constructing any oil derrick, oil tank, or leasehold production
pipe line by virtue of a contract, express or implied, with
the owner or part owner, or his authorized agent, of any oil
and gas lease or leasehold estate or, in the event there is
no lease or estate, any mineral estate, and every subcontractor,
laborer, and materialman who performs any labor or work or
furnishes material to an original contractor or any subcontractor,
in carrying forward, performing, or completing the contract,
has a lien to secure the payment thereof upon the oil and
gas lease or leasehold estate or, in the event there is no
lease or estate, any mineral estate, the oil or gas produced
therefrom and the proceeds thereof, and upon all material
located thereon or used in connection therewith.
(B) The lien, insofar as it extends to oil or gas or the proceeds
of the sale of oil or gas, is not effective against any purchaser
or pipe line carrier of such oil or gas until a copy of the
affidavit provided for in section 1311.06 of the Revised Code
is delivered to such purchaser or pipe line carrier by certified
mail.
(C) To the extent not inconsistent with this section, the
lien provided by this section is governed by this chapter,
and shall be perfected and enforced as other liens as provided
by this chapter, except as follows:
(1) No owner, part owner, or lessee who contracts for labor
or work to be performed or materials furnished for an improvement
need prepare, provide, or record a notice of commencement
pursuant to section 1311.04 of the Revised Code.
(2) No subcontractor or materialman who performs work or labor
upon or furnishes material in furtherance of an improvement
need prepare, provide, or serve a notice of furnishing pursuant
to section 1311.05 of the Revised Code.
(3) The affidavit required to be made and filed by an original
contractor, subcontractor, materialman, or laborer under section
1311.06 of the Revised Code to claim a lien under this section
need not include the first date that the lien claimant performed
any labor or work or furnished any material to the improvement
giving rise to his lien.
(4) For the purpose of determining issues of priority, liens
created under this section are effective from the date the
first visible work or labor is performed or the first materials
are furnished at the site of the improvement.
(5) An owner, part owner, or lessee may request from an original
contractor an affidavit setting forth the name and address
of, a description of labor or work performed or materials
furnished by, and the total amount of the contract and the
balance owed to, all unpaid laborers, subcontractors, and
materialmen providing labor or work or furnishing material
for the improvement, and the serving of the affidavit after
such a request shall be a condition precedent to any right
by the original contractor to file a lien under this section.
If an owner, part owner, or lessee has not made a request
under this division, the original contractor need not serve
an affidavit as provided in this division to file a lien under
this section.
(6)(a) An owner, part owner, or lessee who receives an affidavit
pursuant to division (C)(5) of this section or a notice pursuant
to division (C)(6)(c) of this section may make payment jointly
to the original contractor and any laborers, subcontractors,
and materialmen who are listed in such an affidavit or who
serve such a notice for the amount shown to be unpaid by such
affidavit and notices or may require the original contractor
to obtain lien waivers from any such persons prior to making
payment to the original contractor.
(b) No person who fails to serve the owner, part owner, or
lessee with a notice pursuant to division (C)(6)(c) of this
section and who is omitted from an affidavit provided to the
owner, part owner, or lessee pursuant to division (C)(5) of
this section shall have a right to file a lien pursuant to
this section if the owner has paid the full amount due on
the contract, including payment to the parties listed on the
affidavit or from whom notices were received either in the
full amount due to such parties or in such lesser amount as
represents their pro-rata portion of the full amount of the
contract with the original contractor.
(c) Any laborer, subcontractor, or materialman may serve upon
the owner, part owner, or lessee a notice in writing, which
notice shall be such as will inform the owner, part owner,
or lessee of the improvement, of the nature of the work performed
or to be performed, the materials furnished or to be furnished,
the amount due or to become due therefore, the identity of
the person with whom such laborer, subcontractor, or materialman
has contracted, and the identity of the well, oil derrick,
oil tank, or leasehold production pipe line, the permit number,
and the county upon which such work was or is to be performed
or materials were or are to be furnished.
(7) The provisions of division (B) of section 1311.15 of the
Revised Code shall be applicable with respect to payments
to any subcontractors, materialmen, or laborers identified
on the affidavit provided in division (C)(5) of this section.
Effective Date: 04/10/91
1311.03 Liens for Street, Drain, and
Similar Work
Any person who performs labor or work or furnishes material,
for the construction, alteration, or repair of any street,
turnpike, road, sidewalk, way, drain, ditch, or sewer by virtue
of a private contract between him and the owner, part owner,
or lessee of lands upon which the same may be constructed,
altered, or repaired, or of lands abutting thereon, or as
subcontractor, laborer, or materialman, performs labor or
work or furnishes material to such original contractor or
to any subcontractor in carrying forward or completing such
contract, has a lien for the payment thereof against the lands
of the owner, part owner, or lessee, upon which the street,
turnpike, road, sidewalk, way, drain, or sewer is constructed
or upon which any such street, turnpike, road, sidewalk, way,
drain, ditch, or sewer abuts, as provided in section 1311.02
of the Revised Code.
Effective Date: 04/10/91
1311.04 Notice of Commencement, Recording,
Service, Posting
(A)(1) Prior to the performance of any labor or work or the
furnishing of any materials for an improvement on real property
which may give rise to a mechanics’ lien under sections
1311.01 to 1311.22 of the Revised Code, the owner, part owner,
or lessee who contracts for the labor, work, or materials
shall record in the office of the county recorder for each
county in which the real property to be improved is located
a notice of commencement in substantially the form specified
in division (B) of this section.
(2) Only one notice of commencement is required to be filed
for a single improvement and if more than one notice of commencement
is filed for a single improvement, all notices filed after
the original notice shall be deemed to be amendments to the
original notice. If an owner, part owner, or lessee contracts
with additional original contractors, lenders, or sureties
not identified in the original notice of commencement filed
for the improvement, the owner, part owner, or lessee shall
amend the original notice of commencement to identify the
additional original contractors, lenders, and sureties. The
date of the filing of the amended notice is the date of the
filing of the original notice of commencement.
(B) The notice of commencement required under division (A)
of this section shall contain, in affidavit form, all of the
following information:
(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 improvement;
(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.
(C) If the notice of commencement furnished by or for an owner,
part owner, or lessee contains incorrect information, the
owner, part owner, or lessee is liable for any loss of lien
rights of a lien claimant and any actual expenses incurred
by the lien claimant in maintaining lien rights, including
attorney’s fees, if the loss and expenses incurred are
a direct result of the lien claimant’s reliance on the
incorrect information.
Any lien claimant who has included incorrect information in
his affidavit for a lien under section 1311.06 of the Revised
Code, as a result of incorrect information contained in the
notice of commencement, may file for record an amended affidavit
for a lien. The amended affidavit shall contain all of the
information required by section 1311.06 of the Revised Code
for an original affidavit. The lien claimant shall serve a
copy of the amended affidavit on the owner, part owner, or
lessee as provided in section 1311.07 of the Revised Code.
The lien claimant may file the amended affidavit for record
at any time during the time that the lien acquired by the
original affidavit continues in effect under section 1311.13
of the Revised Code. In no event shall the amended affidavit
extend such time period. The filing of an amended affidavit
does not constitute a waiver of the rights granted by this
division.
(D) Within ten days after the date a subcontractor, materialman,
or laborer serves a written request upon the owner, part owner,
or lessee, or designee for a copy of the notice of commencement,
the owner, part owner, lessee, or designee shall serve a copy
of the notice of commencement to the requesting subcontractor,
materialman, or laborer.
(E) Within ten days after the date a subcontractor, materialman,
or laborer serves a written request for a copy of the notice
of commencement upon the original contractor who has been
provided with a notice of commencement from the owner, part
owner, or lessee, or designee and with whom the subcontractor,
materialman, or laborer has a direct contract, the original
contractor shall serve a copy of the notice of commencement
to the requesting subcontractor, materialman, or laborer.
(F) Within ten days after the date a subcontractor, materialman,
or laborer serves a written request for a copy of the notice
of commencement upon the subcontractor who has been provided
with a notice of commencement from the owner, part owner,
lessee, designee, or original contractor and with whom the
subcontractor, materialman, or laborer has a direct contract,
the subcontractor shall serve a copy of the notice of commencement
upon the requesting subcontractor, materialman, or laborer.
(G)(1) Except as provided in division (G)(2) of this section,
the owner, part owner, lessee, or designee shall post and
maintain posted a copy of the notice of commencement in a
conspicuous place on the real property described in the notice
during the course of the actual physical improvement to the
real property.
(2) No owner, part owner, lessee, or designee, has to post
a copy of the notice of commencement on the real property
described in the notice for an improvement that is the subject
of a home purchase contract.
(H) The owner, part owner, lessee, or designee shall serve
a copy of the notice of commencement upon the original contractor.
If the owner, part owner, lessee, or designee fails to serve
a copy of the notice of commencement upon the original contractor,
the owner, part owner, or lessee is liable to the original
contractor for all actual expenses incurred by the original
contractor in obtaining the information otherwise provided
by the notice of commencement.
(I) If the owner, part owner, lessee, or designee fails to
record the notice of commencement in accordance with this
section, the time within which a subcontractor or materialman
may serve a notice of furnishing as required by section 1311.05
of the Revised Code is extended until twenty-one days after
the notice of commencement has been recorded.
(J) If the owner, part owner, lessee, or designee fails to
serve, upon written request, the notice of commencement in
accordance with this section, the time within which a subcontractor
or materialman may serve a notice of furnishing as required
by section 1311.05 of the Revised Code is extended until twenty-one
days after the notice of commencement actually has been served
to the subcontractor or materialman. The owner, part owner,
or lessee who fails to serve the notice pursuant to this section
is liable to any subcontractor or materialman who becomes
a lien claimant for all actual expenses incurred by the lien
claimant in obtaining the information that would have been
contained in the notice.
(K) If an owner, part owner, lessee, or designee fails to
post or maintain a copy of the notice of commencement as required
by division (G)(1) of this section, the owner, part owner,
or lessee is liable to a subcontractor, materialman, or laborer
who becomes a lien claimant for all actual expenses incurred
by the lien claimant in obtaining the information otherwise
provided by the posting.
(L) If an original contractor or subcontractor who has been
provided with a notice of commencement fails to serve a copy
of the notice of commencement to any subcontractor, materialman,
or laborer who requests it, the original contractor or subcontractor
who fails to serve the copy of the notice is liable to the
subcontractor, materialman, or laborer who made the request
for all costs incurred by the subcontractor, materialman,
or laborer in obtaining the information contained in the notice
of commencement, provided that an original contractor or subcontractor
who fails to provide the notice upon request is not liable
under this division to any subcontractor, materialman, or
laborer with whom he is not in direct privity of contract.
(M)(1) If after the first work, labor, or material has been
performed on or furnished to the improvement, the owner, part
owner, lessee, or designee fails to serve, record, or post
a notice of commencement as required by this section, the
original contractor may, in writing, request the owner, part
owner, lessee, or designee to serve, record, or post the notice.
If an owner, part owner, lessee, or his designee fails or
refuses to serve, record, or post a notice of commencement
within ten days of receipt of a request, the owner, part owner,
or lessee is liable for his failure or refusal and for the
designee’s failure or refusal, without recourse to the
original contractor for all damages, costs, and expenses which
result from the filing of a valid mechanics’ lien to
the extent that the lien, damages, costs, and expenses could
have been avoided through proper payment.
(2) Nothing in this division shall be interpreted as to either
of the following:
(a) Relieving an original contractor from his duty to pay
his subcontractors, materialmen, and laborers for labor or
work performed or materials furnished pursuant to a contract
directly with the original contractor;
(b) Obligating an owner, part owner, or lessee to pay for
work or labor performed or materials furnished by subcontractors,
materialmen, or laborers pursuant to direct contracts with
the original contractor.
(N)(1) If the owner, part owner, or lessee fails to record
a notice of commencement or an amended notice, any person
holding a mortgage on the real property to be improved may
record a notice of commencement or an amended notice on behalf
of the owner, part owner, or lessee. If the owner, part owner,
or lessee fails to record a notice of commencement or an amended
notice within the later of ten days after the performance
of any labor or work or the furnishing of any material for
an improvement on real property which gives rise to a mechanics’
lien under sections 1311.01 to 1311.22 of the Revised Code
or three days after service of a demand to record the notice
or amended notice by the original contractor, the original
contractor may record a notice of commencement or an amended
notice on behalf of the owner, part owner, or lessee.
(2) If the original contractor or a mortgage holder has recorded
a notice of commencement or an amended notice on behalf of
the owner, part owner, or lessee, the owner, part owner, or
lessee is liable to the original contractor or mortgage holder
for all costs and expenses incurred in obtaining the information
contained in the notice of commencement or an amended notice
and all costs incurred in the preparation and recording of
the notice of commencement or an amended notice.
(3) Unless required to file the notice of commencement or
an amended notice on behalf of the owner, part owner, or lessee,
the party filing a written notice of commencement or amended
notice on behalf of the owner, part owner, or lessee is not
liable to the owner, part owner, or lessee for any errors
contained in the notice of commencement or amended notice.
(4) If a mortgage holder or an original contractor records
a notice of commencement or amended notice on behalf of an
owner, part owner, or lessee, such fact must be included on
the notice or amended notice.
(O) This section does not apply to any improvement made pursuant
to a home construction contract as defined in section 1311.011
of the Revised Code.
(P) The county recorder of the county where a notice of commencement
is filed for record shall endorse the date and hour of its
filing and cause it to be recorded as mechanics’ liens
are recorded, and collect the same fees for recording the
notice of commencement as are provided in section 317.32 of
the Revised Code. The recorder shall index the real property
described in the notice of commencement and shall index the
names of all owners, part owners, lessees, and land contract
vendees in the direct index and the names of all original
contractors in the reverse index as provided for in section
317.18 of the Revised Code.
(Q) Notwithstanding this section, if the owner, part owner,
or lessee is a telephone company, an electric light company,
a gas company, a water works company, all as defined in section
4905.03 of the Revised Code, or a subsidiary or affiliate
thereof, the owner, part owner, or lessee may, but is not
required to, record a notice of commencement pursuant to division
(A) of this section, and is not required to serve, post, and
provide copies of a notice of commencement pursuant to divisions
(D), (G), and (H) of this section unless such owner, part
owner, or lessee elects to record the notice of commencement.
If the owner, part owner, or lessee elects to record the notice
of commencement and the improvement extends beyond one parcel
of real property or one county, the owner, part owner, or
lessee may, in lieu of using the legal description required
in division (B)(1) of this section, use a description which
reasonably describes the real property on which the improvement
is to be made. Any description used other than the description
specified in division (B)(1) of this section shall refer to
the township and county in which the improvement is located,
the name and route number of any local, state, or federal
highway near the improvement, if any, the post office address
of the real property, if any, and the name by which the owner,
part owner, or lessee refers to the improvement.
If an owner, part owner, or lessee elects not to record, serve,
post, or provide copies of a notice of commencement pursuant
to divisions (A), (D), (G)(1), and (H) of this section, he
is subject to all applicable liabilities pursuant to divisions
(C), (H), (J), (K), (M), and (N) of this section.
(R) If an owner, part owner, lessee, or designee fails to
record a notice of commencement in accordance with this section,
no subcontractor or materialman who performs labor or work
upon or furnishes material in furtherance of that improvement
has to serve a notice of furnishing in accordance with section
1311.05 of the Revised Code in order to preserve his lien
rights.
Effective Date: 04/16/93
1311.05 Notice of Furnishing, Service,
Exclusions, Exemptions
(A) Except as provided in section 1311.04 of the Revised Code
and this section, a subcontractor or materialman who performs
labor or work upon or furnishes material in furtherance of
an improvement to real property and who wishes to preserve
his lien rights shall serve a notice of furnishing, if any
person has recorded a notice of commencement in accordance
with section 1311.04 of the Revised Code, upon the owner’s,
part owner’s, or lessee’s designee named in the
notice of commencement or amended notice and the original
contractor under the original contract pursuant to which he
is performing labor or work or furnishing materials, as named
in the notice of commencement or amended notice and at the
address listed in the notice or amended notice at any time
after the recording of the notice of commencement or amended
notice but within twenty-one days after performing the first
labor or work or furnishing the first materials or within
the extended time period provided for in division (I) or (J)
of section 1311.04 of the Revised Code. If an owner, part
owner, or lessee has not named a designee in the notice of
commencement or amended notice or if the designee has died
or otherwise has ceased to exist, the subcontractor or materialman
shall serve the notice of furnishing upon the owner, part
owner, or lessee named in the notice of commencement. If no
designee is named or if the designee has died or otherwise
has ceased to exist, and if more than one owner is named in
the notice of commencement, service of the notice of furnishing
to the first owner, part owner, or lessee named in the notice
of commencement is sufficient. No original contractor has
to serve a notice of furnishing to preserve lien rights arising
from a contract with an owner, part owner, or lessee. No materialman
who is in direct privity of contract with an owner, part owner,
or lessee has to serve a notice of furnishing upon the owner,
part owner, or lessee or designee in order to preserve his
lien rights. No subcontractor or materialman who is in direct
privity of contract with the original contractor has to serve
a notice of furnishing upon the original contractor in order
to preserve his lien rights.
If any person has recorded a notice of commencement in accordance
with section 1311.04 of the Revised Code for an improvement
involving a single- or double-family dwelling and if that
notice states that multiple original contractors are involved
in the improvement, a subcontractor or materialman does not
have to serve a notice of furnishing upon any original contractor
in order to preserve his lien rights.
A subcontractor or materialman who serves a notice of furnishing
in conformity with this section does not have to serve an
amended notice of furnishing on any party if he receives an
amended notice of commencement subsequent to service of his
notice of furnishing. If a subcontractor or materialman serves
a notice of furnishing based upon information contained in
any notice of commencement or amended notice of commencement
relative to the improvement for which he performs labor or
work or furnishes material, the notice of furnishing is deemed
effective even if the notice of commencement already has been
amended or is amended in the future.
If a lender is named in the notice of commencement or amended
notice, a subcontractor or materialman may serve a copy of
the notice of furnishing upon the lender at the address listed
in the notice or amended notice, provided that no subcontractor
or materialman is required to serve a copy of the notice of
furnishing upon the lender to preserve his lien rights. The
receipt of a notice of furnishing by a lender imposes no duty
upon the lender by implication or otherwise with respect to
the disbursement of any loan proceeds or the payment to any
subcontractor, materialman, or any other person.
(B) The notice of furnishing shall be in substantially the
following form:
“Notice of Furnishing
(For use in connection with improvements to property other
than public improvements)
To: _______________________________(Name of owner, part owner,
or lessee or designee from the notice of commencement __________________________
(Address from the notice of commencement)
To: _______________________________(Name of original contractor
from notice of commencement)__________________________
(Address of original contractor from notice of commencement)
Please take notice that the undersigned is performing certain
labor or work or furnishing certain materials to ____________________________
(name and address of other contracting party) ________________
in connection with the improvement to the real property located
at ________________. The labor, work, or materials were performed
or furnished first or will be performed or furnished first
on ______________ (date).
WARNING TO OWNER: THIS NOTICE IS REQUIRED BY THE OHIO MECHANICS’
LIEN LAW. IF YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS AND
DUTIES UNDER THESE STATUTES YOU SHOULD SEEK LEGAL ASSISTANCE
TO PROTECT YOU FROM THE POSSIBILITY OF PAYING TWICE FOR THE
IMPROVEMENTS TO YOUR PROPERTY.
_____________________________
(Name and address of lien claimant)
By __________________________
(Name and capacity of party signing for lien claimant)
_____________________________
(Address of party signing)
Date:”
(C) The description of the location of the property required
in the notice of furnishing is sufficient if it reasonably
identifies the real property upon which the labor or work
is performed or for which the material is furnished.
(D)(1) Except as provided in division (D)(2) of this section,
a notice of furnishing served more than twenty-one days after
a subcontractor or materialman who is required by this section
to serve a notice of furnishing, first performed labor or
work or furnished material at the site of the improvement
preserves the subcontractor’s or materialman’s
lien rights for amounts owing for labor and work performed
and materials furnished within the twenty-one-day period immediately
preceding service of the notice of furnishing and thereafter,
but does not revive any prior lien rights for labor or work
performed or materials furnished prior to the twenty-one days
immediately preceding service of the notice of furnishing.
(2) A notice of furnishing served within the applicable period
provided for in section 1311.04 of the Revised Code preserves
the subcontractor’s or materialman’s lien rights
for amounts owing for labor and work performed and materials
furnished from the date the labor or work was first performed
or materials were first furnished through the date of service
of the notice of furnishing and thereafter. A notice of furnishing
served after the applicable period provided for in section
1311.04 of the Revised Code does not revive any prior lien
rights for labor or work performed or materials furnished
prior to the twenty-one days immediately preceding service
of the notice of furnishing.
(E) This section does not apply to any improvement made pursuant
to a home construction contract as defined in section 1311.011
of the Revised Code.
(F) A notice of furnishing, even if served upon a mortgagee
of real property to be improved, does not constitute a written
notice of a lien or encumbrance under section 5301.232 or
a written notice of a claim of a right to a mechanics’
lien under division (B)(5) of section 1311.011 of the Revised
Code.
(G) No laborer must serve a notice of furnishing in accordance
with this section to preserve lien rights.
(H) No subcontractor or materialman who performs labor or
work upon or furnishes material in furtherance of an improvement
has to serve a notice of furnishing in accordance with this
section in order to preserve his lien rights if the owner,
part owner, or lessee who contracted for the labor, work,
or materials fails to record a notice of commencement in accordance
with section 1311.04 of the Revised Code.
Effective Date: 04/16/93
1311.06 Affidavit for Mechanics Lien,
Form, Recording
(A) Any person, or his agent, who wishes to avail himself
of sections 1311.01 to 1311.22 of the Revised Code, shall
make and file for record in the office of the county recorder
in the counties in which the improved property is located,
an affidavit showing the amount due over and above all legal
setoffs, a description of the property to be charged with
the lien, the name and address of the person to or for whom
the labor or work was performed or material was furnished,
the name of the owner, part owner, or lessee, if known, the
name and address of the lien claimant, and the first and last
dates that the lien claimant performed any labor or work or
furnished any material to the improvement giving rise to his
lien. If the affidavit is recorded, the omission or inaccuracy
of any address in the affidavit does not affect its validity.
The affidavit may be verified before any person authorized
to administer oaths, whether agent for the owner, part owner,
lessee, lien claimant, or an interested or other party.
(B) The affidavit shall be filed within one of the following
periods:
(1) If the lien arises in connection with a one- or two-family
dwelling or in connection with a residential unit of condominium
property as defined in Chapter 5311. of the Revised Code,
within sixty days from the date on which the last labor or
work was performed or material was furnished by the person
claiming the lien;
(2) If the lien arises under section 1311.021 of the Revised
Code, within one hundred twenty days from the date on which
the last labor or work was performed or material was furnished
by the person claiming the lien;
(3) If the lien is one not described in division (B)(1) or
(2) of this section, within seventy-five days from the date
on which the last of the labor or work was performed or material
was furnished by the person claiming the lien.
(C) The affidavit may be in the following form:
“AFFIDAVIT FOR MECHANICS’ LIEN.
State of Ohio,County of _____________, ss: _________, whose
address is ___________, being first duly sworn, says that
_____________, the lien claimant, furnished certain material
or performed certain labor or work in the furtherance of improvements
located on or removed to the land hereinafter described, in
pursuance of a certain contract, with _________, the owner,
part owner, lessee, original contractor, subcontractor, or
other person, as the case may be, whose address is __________
The first of the labor or work was performed or material was
furnished on the _________ day of ________, ______ (year).
The last of the labor or work was performed or material was
furnished on the _____ day of ________, (year), and there
is justly and truly due __________, the lien claimant, therefore
from __________, the owner, part owner, lessee, original contractor,
subcontractor, or other person, as the case may be, over and
above all legal setoffs, the sum of ___________ dollars, for
which amount __________, the lien claimant, claims a lien
on the land, building, or leasehold, of which ___________
is or was the owner, part owner, or lessee, as the case may
be, which property is described as follows:
Sworn to before me and subscribed in my presence this _______day
of __________, _____ (year).
(D) For purposes of this section, the description of the property
is sufficient if made in accordance with division (B)(1) of
section 1311.04 of the Revised Code.
(E) The recorder shall indorse upon every affidavit the date
and hour of its filing, and record it in a separate book kept
for affidavits. No exemptions apply against any lien under
this chapter.
(F) One or more laborers may authorize an agent to prepare,
execute, file, and serve the affidavit required by this section.
The affidavit may set forth the claims of one or more laborers,
provided that the affidavit separately itemizes the claim
of each laborer and may set forth claims for wages that are
contractually due but are unpaid.
Effective Date: 04/16/93
1311.07
Service of Affidavit of Mechanics Lien
Any person filing an affidavit pursuant to section 1311.06
of the Revised Code shall serve a copy of the affidavit on
the owner, part owner, or lessee of the improved property
or his designee, within thirty days after filing the affidavit.
If the affidavit cannot be served in accordance with section
1311.19 of the Revised Code, then the person shall serve the
copy by posting it in some conspicuous place on the premises
of the improved property within ten days after the expiration
of the thirty days.
Effective Date: 04/10/91
1311.08 Liens on Separate Lots
Where an improvement consists of two or more buildings united
together, situated on the same lot or upon contiguous or adjacent
lots, or of separate buildings upon contiguous or adjacent
lots, or where work or labor has been performed or material
has been furnished for improvements which are located on separate
tracts or parcels of land but operated as an entire plant
or concern, and erected under one general contract, the lien
for the labor or work performed or material furnished attaches
to all such improvements, together with the land upon, around,
or in front of which such labor or work is performed or material
is furnished, the same as provided in sections 1311.02 and
1311.03 of the Revised Code in case of a single improvement,
and it is not necessary to file a separate lien for each improvement.
Provided that where a lien attaches pursuant to this chapter
to contiguous or adjacent lots, on which lots separate dwelling
units designed to be separately sold have been or are being
constructed, except with respect to any person who performs
labor or work or furnishes material for the construction,
alteration, or repair of any street, turnpike, road, sidewalk,
way, drain, ditch, or sewer by virtue of a private contract
between him and the owner, part owner, or lessee of lands
upon which the same may be constructed, altered, or repaired,
or of lands abutting thereon, the lien rights on any lot on
which all construction has been completed and which has been
conveyed to a purchaser for value shall terminate either sixty
days from the date on which the last labor or work was performed
or material furnished in connection with the construction
on any of such lots, or sixty days after the instrument of
conveyance to the purchaser separating the lot from the contiguous
or adjacent lots is filed for record, whichever date is earlier,
unless and except for lien rights which are evidenced by an
affidavit or affidavits filed for record in accordance with
section 1311.06 of the Revised Code before the expiration
of the sixty-day period.
Effective Date: 04/10/91
1311.09
Defective Title, Property Held by Vendee
Any person performing labor or work or furnishing material
for the erection of a new building or structure upon land
to which the person contracting for the erection has no legal
title or to which the title is defective, has a lien therefore
upon the building or structure, and the forfeiture or surrender
of any title, claim of title, or equitable interest by the
contracting person to the land does not defeat the lien upon
the building or structures of the person performing labor
or work or furnishing material. In case the property covered
by a lien is held by the vendee in a land contract or by a
lessee, and he surrenders or forfeits his rights thereunder,
the person holding the liens may be subrogated to the rights
of the vendee or lessee, as his rights existed immediately
before the surrender or forfeiture, by performing the covenants
contained in the contract or lease within thirty days after
the lien claimant has actual notice of the forfeiture. Any
lien claimant may pay off any prior recorded lien, encumbrance,
or mortgage and then is subrogated to all the rights of the
prior holder of the lien, encumbrance, or mortgage.
Effective Date: 04/10/91
1311.10 Presumptions as to Agency
(A) Any person who contracts for an improvement to real property
which gives rise to lien rights under sections 1311.01 to
1311.22 of the Revised Code is presumed to be the authorized
agent of all part owners of the real property, except when
the relationship between the person contracting for the improvement
and the other part owners is that of lessee and lessor or
sublessee and sublessor.
(B) Any person who contracts for improvements provided in
a home construction contract, as defined in section 1311.011
of the Revised Code, is presumed to be the agent for his spouse.
(C) The presumptions established by this section may be overcome
only by clear and convincing evidence.
Effective Date: 04/16/93
1311.11 Notice to Commence Suit, Service,
Limitations, Release Bond, Approval, Discharge
(A)(1) The owner, part owner, lessee, mortgagee, or any other
person with an interest in real property upon which a lien
has been taken, or any original contractor or subcontractor
who has provided a bond, cash deposit, general obligation
of any state government or of the United States government,
obligation insured by an agency of the United States government,
or other reasonable security in accordance with division (C)
of this section, may notify the lienholder to commence suit
on the lien, by written notice delivered to the lienholder
in one of the following manners:
(a) At the address of the lienholder as shown in the affidavit
of lien;
(b) Through his agent indicated on the affidavit of lien;
(c) At any later address of the lienholder that has been delivered
in writing to the owner, part owner, lessee, mortgagee, other
person with an interest in the real property, original contractor,
or subcontractor.
Except as otherwise provided in this section, the notice to
commence suit shall be served by the sheriff of the county
in which the land upon which the lien has been taken is situated,
upon payment of the same mileage and fees as provided by law
with respect to the service of summons. Except as otherwise
provided in this section, if the address of the person to
be served, as shown on the affidavit of lien or other writing
presented by the person seeking service of the notice to commence
suit, is outside the county in which the land is located,
but within the state, the sheriff shall forward the notice
to commence suit to the sheriff of the county in which the
address of the person to be served is located, for service
by such sheriff.
(2) At the request of the person seeking service of the notice
to commence suit, the sheriff may send the notice by certified
mail, return receipt requested, to the address of the lienholder
or the lienholder’s agent, whether that address is within
the county in which the land is located or elsewhere. If the
address of the person to be served is outside the state, the
sheriff shall send the notice by certified mail, return receipt
requested.
If the notice is sent by certified mail, return receipt requested,
service of the notice is deemed completed when a return receipt
has been received indicating the delivery of the notice. If
a return receipt shows a failure or refusal of delivery, service
is deemed completed after the sheriff mails a second copy
of the notice by ordinary mail, provided that the ordinary
mail envelope is not returned by the postal authorities within
fourteen days of the date of mailing with an endorsement showing
failure of delivery.
(3) If service cannot be made at the address shown on the
affidavit of lien or other writing presented by the person
seeking service of the notice to commence suit, and if the
lienholder or his agent cannot be located by diligent search,
the notice to commence suit may be served by publication once
each week for six consecutive weeks in a newspaper of general
circulation in the county in which the land is located. Upon
completion of service in all cases, a copy of the notice shall
be furnished to the owner, part owner, lessee, mortgagee,
or other person requesting service, which copy shall have
the return of the sheriff endorsed on it, and in addition,
in cases of service by certified mail or by publication, the
copy shall have attached to it the return receipt or an affidavit
that service by publication has been completed.
(B) Within thirty days after service is completed, the person
who sought service shall do all of the following:
(1) Execute an affidavit setting forth the manner in which
service was accomplished;
(2) Attach to the affidavit a copy of the notice to commence
suit, with the sheriff’s return endorsed on the notice
or with a certified mail return receipt indicating the service
or attempted service;
(3) File the items with the recorder of the county in which
the property is located.
The recorder shall index and record the notice in the same
manner and receive the same fees as for releases of mortgages
and other liens.
If the lienholder fails to commence suit upon the lien within
sixty days after completion of service upon him of the notice
to commence suit, or if the action is commenced but dismissed
with prejudice before adjudication, the lien is void and the
property wholly discharged from the lien. When a lien is void
by reason of failure to commence suit within sixty days after
service of the notice to commence suit, the claim upon which
the lien was founded is not prejudiced by the failure, except
for the loss of the lien as security for the claim.
(C)(1) Before or after suit has been commenced upon a lien,
and whether or not a notice to commence suit has been served,
a bond, cash deposit, general obligation of any state government
or of the United States government, obligation insured by
an agency of the United States government, or, subject to
this division, other reasonable security may be provided in
double the amount of the claim secured by the lien or, if
the claim secured by the lien exceeds five thousand dollars,
in the amount of one and one-half times the amount of the
claim, conditioned upon payment of any judgment and costs.
A bond shall be drawn in favor of the lienholder and executed
by sufficient sureties, if required. Other reasonable security
may be provided only with the consent of the lienholder.
An application shall be made to the court of common pleas
for approval of a bond, cash deposit, general obligation of
any state government or of the United States government, obligation
insured by an agency of the United States government, or other
reasonable security. The bond, cash deposit, general obligation
of any state government or of the United States government,
obligation insured by an agency of the United States government,
or other reasonable security shall be filed with the application,
and notice of a hearing on the application shall be given
to the lienholder or his agent. If the application is filed
before suit is commenced on the lien, the notice of hearing
shall be served on the lienholder or his agent in the same
manner as provided in division (A) of this section for service
of the notice to commence suit. If the application is filed
after suit is commenced, the notice of hearing shall be given
in the same manner as a notice of hearing on motions or other
applications before the court.
(2) At the hearing on the application, the only issues to
be determined are the sufficiency of the bond, cash deposit,
general obligation of any state government or of the United
States government, obligation insured by an agency of the
United States government, or other reasonable security, and,
if the security is not a bond, cash deposit, general obligation
of any state government or of the United States government,
or obligation insured by an agency of the United States government,
whether the lienholder has consented to the security and the
security is reasonable. If the court finds the bond, cash
deposit, general obligation of any state government or of
the United States government, obligation insured by an agency
of the United States government, or other reasonable security
sufficient and, if the security is not a bond, cash deposit,
general obligation of any state government or of the United
States government, or obligation insured by an agency of the
United States government, that the lienholder has consented
to the security and that the security is reasonable, it shall
make an entry of approval. If a bond is approved, the court
shall order that the bond be retained in the file. If a cash
deposit, general obligation of any state government or of
the United States government, obligation insured by an agency
of the United States government, or other reasonable security
is approved, the court shall enter an order that it considers
appropriate relative to the manner in which the cash deposit,
general obligation of any state government or of the United
States government, obligation insured by an agency of the
United States government, or other reasonable security shall
be secured. During the pendency of a suit upon the lien, the
court may enter an order that the amount of other reasonable
security is to be increased or decreased or an order that
action is to be taken with respect to the security that the
court deems appropriate.
(3) As of the date of the entry of approval, the security
of the bond, cash deposit, general obligation of any state
government or of the United States government, obligation
insured by an agency of the United States government, or other
reasonable security shall be substituted for the security
of the lien, and the lien is void and the property wholly
discharged from the lien. If an action on the lien has been
or is commenced and a bond, cash deposit, general obligation
of any state government or of the United States government,
obligation insured by an agency of the United States government,
or other reasonable security has been or is provided in accordance
with this section, the action on the lien is terminated automatically,
the land is freed from the lien, and the action on the lien
may proceed as an action on the bond, cash deposit, general
obligation of any state government or of the United States
government, obligation insured by an agency of the United
States government, or other reasonable security, through,
if appropriate, a supplemental pleading bringing in as additional
parties sureties on the bond.
A bond is discharged and the sureties released, or a cash
deposit, general obligation of any state government or of
the United States government, obligation insured by an agency
of the United States government, or other reasonable security
provided is released, upon failure of the lienholder to commence
suit within the time allowed pursuant to division (B) of this
section, or if a suit on the security is dismissed with prejudice
to the plaintiff or judgment is entered against the plaintiff,
or if judgment is entered in favor of the plaintiff upon payment
of the judgment with costs. The court may direct that costs
and a judgment in favor of the plaintiff in a suit be paid
from a cash deposit, general obligation of any state government
or of the United States government, obligation insured by
an agency of the United States government, or other reasonable
security, and may direct, if necessary, that other reasonable
security be sold and the proceeds of the sale be applied to
the judgment and costs.
Effective Date: 04/10/91
1311.12
Conditions to Effectiveness of Mechanics Lien Claim, Presumptions
(A) A mechanic’s lien for furnishing materials arises
under sections 1311.01 to 1311.22 of the Revised Code only
if the materials are:
(1) Furnished with the intent, as evidenced by the contract
of sale, the delivery order, delivery to the site by the claimant
or at the claimant’s direction, or by other evidence,
that the materials be used in the course of the improvement
with which the lien arises;
(2) Incorporated in the improvement or consumed as normal
wastage in the course of the improvement;
(3) Specifically fabricated for incorporation in the improvements
and not readily resalable in the ordinary course of the fabricator’s
business even if not actually incorporated in the improvement;
(4) Used for the improvement or for the operation of machinery
or equipment used in the course of the improvement and not
remaining in the improvement, subject to diminution by the
salvage value of those materials; or
(5) Tools or machinery used on the particular improvement,
subject to division (C) of this section.
(B) The delivery of materials to the site of the improvement,
whether or not by the claimant, creates a conclusive presumption
that the materials were used in the course of the improvement
or were incorporated into the improvement.
(C) A mechanics’ lien for furnishing tools or machinery
which arises under division (A)(5) of this section is limited
to either of the following:
(1) If the tools or machinery are rented, the lien is for
the reasonable rental value for the period of actual use and
any reasonable period of nonuse taken into account in the
rental contract.
(2) If the tools or machinery are purchased, the lien is for
the price, but the lien only arises if the tools or machinery
were purchased for use in the course of the particular improvement
and have no substantial value to the purchaser after the completion
of the improvement on which they were used.
(D) All of the deliveries or the sales, or both, by a lien
claimant of materials, including tools and machinery to or
for an improvement, give rise to one mechanics’ lien
for the unpaid portion of the sales.
Effective Date: 4-10-91
1311.13
Priority of Mechanics Liens, Limitations, Priorities Among
Liens
(A)(1) Liens under sections 1311.01 to 1311.22 of the Revised
Code for labor or work performed or materials furnished prior
to the recording of the notice of commencement pursuant to
section 1311.04 of the Revised Code are effective from the
date the first visible work or labor is performed or the first
materials are furnished by the original contractor, subcontractor,
materialman, or laborer at the site of the improvement.
(2) Except as provided in division (A)(3) of this section,
liens under sections 1311.01 to 1311.22 of the Revised Code
for labor or work performed or materials furnished after the
recording of a notice of commencement pursuant to section
1311.04 of the Revised Code are effective from the date of
the recording of the notice of commencement.
(3) Notwithstanding division (A)(2) of this section, if there
is a valid and recorded lien with an effective date described
in division (A)(1) of this section which has not been released
at the time a lien is filed by a laborer after the recording
of the notice of commencement or if a valid lien against the
improvement pursuant to division (A)(1) of this section is
filed subsequent to the filing of a laborer’s lien,
the lien of the laborer is effective from the date the first
visible labor or work was performed or materials were furnished
by the original contractor, subcontractor, materialman, or
laborer at the site of the improvement.
(B)(1) Except for the liens of laborers as provided in division
(B)(2) of this section, a lien securing the claim of a claimant
who has performed labor or work or furnished materials both
prior to and after the recording of the notice of commencement
pursuant to section 1311.04 of the Revised Code has two effective
dates. That portion of the lien which arises from labor or
work performed or materials furnished prior to the filing
of the notice of commencement has the effective date described
in division (A)(1) of this section and that portion of the
lien which arises from labor or work performed or materials
furnished on or after the filing of the notice of commencement
has the effective date described in division (A)(2) of this
section. Any payment received by the lien claimant both before
and after the filing of a lien shall be applied first to the
labor or work performed or materials furnished prior to the
filing of the notice of commencement, and then to labor or
work performed or materials furnished on and after the filing
of the notice of commencement.
(2) A lien filed by a laborer for labor or work performed
both prior to and after the recording of the notice of commencement
pursuant to section 1311.04 of the Revised Code has one effective
date as described in division (A)(1) of this section.
(C) Liens under sections 1311.01 to 1311.22 of the Revised
Code continue in force for six years after an affidavit is
filed in the office of the county recorder under section 1311.06
of the Revised Code. If an action is brought to enforce the
lien within that time, the lien continues in force until final
adjudication thereof.
(D) If several liens are obtained by several persons upon
the same improvement they have no priority among themselves,
except as follows:
(1) Liens which have an effective date described in division
(A)(1) of this section have priority over all other liens,
except for liens described in divisions (A)(3), (B)(2), or
(D)(2) of this section, to the extent of the value of the
work and labor performed and materials furnished prior to
the recording of the notice of commencement pursuant to section
1311.04 of the Revised Code.
(2) Liens filed by laborers have priority over all other liens
whether the labor or work was performed before or after the
recording of the notice of commencement pursuant to section
1311.04 of the Revised Code.
(E)(1) Except as provided in division (E)(2) of this section,
liens which have an effective date described in division (A)(1)
of this section shall be preferred to the extent of the value
of the labor or work performed or materials furnished prior
to the recording of the notice of commencement, to all other
titles, liens, or encumbrances which may attach to or upon
the improvement or to or upon the land upon which it is situated,
which either shall be given or recorded subsequent to the
effective date of the liens described in division (A)(1) of
this section.
(2) Liens recorded by laborers which have an effective date
described in division (A)(1) or (3) of this section shall
be preferred to all other titles, liens, or encumbrances which
may attach to or upon the improvement or to or upon the land
upon which it is situated which are given or recorded subsequent
to the effective date of such laborers’ liens.
(F) Liens which have an effective date described in division
(A)(2) of this section shall be preferred to all other titles,
liens, or encumbrances which may attach to or upon such improvement
or to or upon the land upon which it is situated, which either
are given or recorded subsequent to the recording of the notice
of commencement.
(G) The recorder may destroy the record of all mechanics’
liens which have been recorded for a period of ten years or
longer.
Effective Date: 04/16/93
1311.14 Priority of Mortgages Securing
Construction Loans, Notice to Mortgagee, Payments from Construction
Loan Account, Priorities
Except as provided in this section, the lien
of a mortgage given in whole or in part to improve real estate,
or to pay off prior encumbrances thereon, or both, the proceeds
of which are actually used in the improvement in the manner
contemplated in sections 1311.02 and 1311.03 of the Revised
Code, or to pay off prior encumbrances, or both, and which
mortgage contains therein the correct name and address of
the mortgagee, together with a covenant between the mortgagor
and mortgagee authorizing the mortgagee to do all things provided
to be done by the mortgagee under this section, shall be prior
to all mechanic’s, materialmen’s, and similar
liens and all liens provided for in this chapter that are
filed for record after the improvement mortgage is filed for
record, to the extent that the proceeds thereof are used and
applied for the purposes of and pursuant to this section.
Such mortgage is a lien on the premises therein described
from the time it is filed for record for the full amount that
is ultimately and actually paid out under the mortgage, regardless
of the time when the money secured thereby is advanced.
Any laborer or materialman who claims or at any time can claim
a right of lien on the premises for any labor or work performed
or to be performed or for material furnished or to be furnished
for the improvement, may serve a written notice on the mortgagee,
which notice shall show the kind and nature of the labor or
work performed or to be performed, or both, and of the material
furnished or to be furnished, or both, and the amount claimed
or to be claimed therefore, and a description of the premises
upon which the labor or work has been or is to be performed
or to which the material has been or is to be furnished, and
the amount claimed therefore.
The mortgagee need not pay out any of the mortgage fund for
fifteen days after filing the mortgage. At the end of such
period, he may refuse to go forward with the loan or to pay
out the fund, in which case, if no funds have been advanced,
he shall make, execute, and deliver to the mortgagor, or to
the county recorder to be recorded, a proper release of the
mortgage, but if the mortgagee elects to complete the loan,
he shall, in order to obtain the priority set forth in this
section, distribute the mortgage fund in the following order:
(A) The mortgagee may at any time pay off the prior encumbrance,
or withhold the amount thereof for that purpose.
(B) Out of the residue of the fund, the mortgagee may at any
time retain sufficient funds to complete the improvement,
according to the original plans, specifications, and contracts,
and within the original contract price.
(C) The mortgagee may from time to time pay out on the owner’s
order, directly to the original contractor or subcontractor,
or to the owner himself if he is his own contractor, such
sums as the owner certifies to be necessary to meet and pay
labor payrolls for the improvement.
(D) The mortgagee shall pay on the order of the owner, the
accounts of the materialmen and laborers who have filed with
the mortgagee a written notice as provided in this section,
the amounts due for labor or work then performed and material
then furnished for the improvement; and shall retain out of
the mortgage fund such money to become due as is shown by
the notice served and shall hold such money, and shall pay
on the order of the owner, the amounts due to such persons
who have served such notices, if the mortgagee has sufficient
money in his hands to do so and also to complete the improvement;
but if the mortgagee has funds in his hands insufficient to
pay all such laborers and materialmen in full and to complete
the improvement, he shall retain sufficient money to complete
the improvement and to distribute the balance pro rata among
the materialmen and laborers who have filed such notices.
(E) If the owner refuses to issue an order to pay the amount
of the notice filed, the mortgagee shall retain the whole
amount claimed until the proper amount has been agreed upon
or judicially determined, provided that the mortgagee may
withhold sufficient funds to complete the improvement.
(F) The mortgagee shall pay out on the owners’ order,
directly to materialmen or laborers who have performed labor
or work or furnished material for the improvement.
(G) The mortgagee shall pay the balance of the mortgage fund
after the improvement is completed to the owner, or to whomsoever
the owner directs.
In case the mortgagee pays out the fund otherwise than as
provided in this section, then the lien of the mortgage to
the extent that the funds had been otherwise paid, is subsequent
to liens of original contractors, subcontractors, materialmen,
and laborers; but in no case is such a mortgagee obligated
to pay or liable at law for more than the principal of the
mortgage.
All payments and distributions made by the mortgagee as provided
in this section shall be considered the same as if paid to
the owner, part owner, lessee, or mortgagor under the mortgage,
and as if paid to the original contractor, and when paid pursuant
to this section there is no further liability on the part
of the mortgagee. This chapter does not require the mortgagee
to ascertain by affidavit or otherwise the respective claims
of original contractors, subcontractors, laborers, or materialmen,
or to determine priorities among lien claimants.
The mortgagee is not responsible for a mistake of the owner
in determining priorities, or for any failure of the payee
properly to distribute funds paid on the written order of
the owner.
Any original contractor, subcontractor, materialman, or laborer
may at any time serve on any mortgagee a written request demanding
to know the exact balance of the mortgage fund in his possession
and the aggregate amount included in the notices filed with
the mortgagee at the time of the receipt of such notice. The
mortgagee shall correctly inform the person serving the notice
of the exact balance and the aggregate amount included in
the notices filed. If the mortgagee fails to inform the original
contractor, subcontractor, materialman, or laborer serving
the written demand of the exact balance of the mortgage fund
in his possession at the time of the receipt of the notice,
the mortgagee is liable to the original contractor, subcontractor,
materialman, and laborer making such demand, each time he
fails to comply with such demand, in the sum of one hundred
dollars.
This section, as to mortgages contemplated by this section,
controls over all other sections of the Revised Code relating
to mechanic’s, materialmen’s, contractor’s,
subcontractor’s, laborer’s, and all liens that
can be had under this chapter, and shall be liberally construed
in favor of such mortgagees, a substantial compliance by such
mortgagees being sufficient.
Effective Date: 04/10/91
1311.15 Priorities, Payments of Lien
Claims, Setoff
(A) The lien of a subcontractor is superior to any already
taken or to be taken by the original contractor in respect
of the same labor, work, or material, and the liens of laborers,
materialmen, and subcontractors to an original contractor
or subcontractor, are superior to any lien already taken or
to be taken by such original contractor or subcontractor indebted
to them in respect of such labor, work, or material. An assignment
or transfer by the original contractor or subcontractor, of
his contract with the owner or original contractor, as well
as all proceedings in attachment, or otherwise, against the
original contractor or subcontractor, to subject or encumber
his interest in such contract, is subject to the claims of
every laborer, subcontractor, or materialman who performs
any labor or work or furnishes any material in furtherance
of any improvement in accordance with this chapter.
(B)(1) An owner, part owner, lessee, or public authority may
pay directly the claim of any subcontractor or materialman
who serves a notice of furnishing pursuant to section 1311.05
or 1311.261 of the Revised Code, or the claim of any laborer.
If the owner, part owner, lessee, or public authority pays
such claim, he has a right to a setoff or credit, in an amount
equal to the amount paid, against the original contractor
or principal contractor who employed the subcontractor, materialman,
or laborer paid by the owner, part owner, lessee, or public
authority under division (B)(1) of this section.
(2) A principal contractor, an original contractor, or a subcontractor
may pay directly the claim of any subcontractor or materialman
who serves a notice of furnishing pursuant to section 1311.05
or 1311.261 of the Revised Code, or the claim of any laborer.
If the principal contractor, original contractor, or subcontractor
pays such claim, he has a right to a setoff or credit, in
an amount equal to the amount paid, against the subcontractor
who employed the subcontractor, materialman, or laborer paid
by the principal contractor, original contractor, or subcontractor
under division (B)(2) of this section.
(C) The failure of an original or principal contractor, subcontractor,
materialman, or laborer to properly exercise his rights under
this chapter does not limit his right to pursue any other
legal or equitable remedy.
Effective Date: 04/16/93
1311.16
Judgment, Attorneys Fees
Any person holding a mechanic’s lien, in addition to
the remedies provided for in sections 1311.01 to 1311.22 of
the Revised Code, may proceed by petition, as in other cases
of liens, against the owner and all other persons interested,
either as lienholders or otherwise, in any improvement, or
street, turnpike, road, sidewalk, way, drain, ditch, or sewer,
as mentioned in section 1311.03 of the Revised Code, and the
lot or land on which it stands or to which it may be removed,
and obtain such judgment therein for the rent or sale thereof
as justice and equity require. When judgment is rendered in
the proceeding in favor of the parties succeeding therein,
the court may allow reasonable attorney fees to be paid out
of the fund realized for lien claimants.
Effective Date: 4-10-91
1311.17 Part Performance
When the owner, part owner, or lessee fails to perform his
part of the contract, and by reason thereof the other party
without his default, is prevented from completely performing
his part, he is entitled to a reasonable compensation for
as much thereof as he has performed in proportion to the price
stipulated for the whole, and the court shall adjust his claim
accordingly.
Effective Date: 10/01/53
1311.18
Separation of Property
Under
section 1311.16 of the Revised Code, if any part of the premises
can be separated from the residue and sold without damage
to the whole, and if the value thereof is sufficient to satisfy
all the claims proved in the case, the court may order a sale
of that part, if it is for the best interest of all parties
concerned.
Effective
Date: 10-1-53
1311.19
Methods of Service
(A)
Except as otherwise provided in section 1311.11 of the Revised
Code, any notice, affidavit, or other document required to
be served under this chapter shall be served by one of the
following means:
(1)
The sheriff of the county in which the person to be served
resides or maintains his principal place of business, in one
or more of the methods provided in the Ohio Rules of Civil
Procedure. The sheriff may charge reasonable fees for such
service.
(2)
Certified or registered mail, overnight delivery service,
hand delivery, or any other method which includes a written
evidence of receipt;
(3)
The means provided in division (H) of section 1701.07 of the
Revised Code, if the person is a corporation.
(B)
For purposes of this chapter, service is complete upon receipt
by the party being served except as provided in division (H)
of section 1701.07 of the Revised Code and except, for the
purposes of sections 1311.05 and 1311.261 of the Revised Code,
if service of a notice of furnishing is made by certified
mail, service is complete on the date of the mailing. If the
service is attempted upon an owner, part owner, or lessee,
or designee, at the address contained in the notice of commencement
required by section 1311.04 of the Revised Code, and if the
notice, affidavit, or other document is returned unclaimed
or refused, service is complete when first attempted.
Effective
Date: 04/16/93
1311.20
Failure to Release Lien, Damages
If,
after the amount of his lien has been satisfied or adjudged
against him in an action thereon, a lienholder fails within
thirty days thereafter to cause the lien to be released, such
lienholder is liable to the owner, part owner, or lessee for
all damages arising therefrom, not exceeding the amount of
the lien and costs.
In
a county in which the county recorder has determined to use
the microfilm process as provided by section 009.01 of the
Revised Code, the recorder may require that release of the
lien be by separate instrument with acknowledgment as required
for the original affidavit. The original instrument bearing
the proper endorsement thereon may be used as the separate
instrument. The separate instrument release shall be recorded
in the book required by section 1311.06 of the Revised Code.
The fee for recording shall be that provided by section 317.32
of the Revised Code for satisfaction of a mortgage.
Effective
Date: 04/10/91
1311.21
Assignments, Parties, Lis Pendens
(A) All liens or claims for liens which may arise or accrue
under sections 1311.01 to 1311.22 of the Revised Code are
assignable. No such lien shall be defeated or waived by the
taking by the lien claimant from any person of any promissory
note or of any security for such debt other than upon the
real estate itself, in the absence of a written agreement
that the taking of such note or such security is a waiver
of the lien.
(B) Parties entitled to liens under sections 1311.01 to 1311.22
of the Revised Code, whose claims are not due and payable,
may give notice of their intention to claim a lien and may
become parties to any suit to enforce a lien, or to institute
such suit or proceedings themselves. Their claims shall be
allowed, subject to a reduction of interest, if such claims
are not due at the time of the rendition of the judgment,
but no process shall issue or proceedings be had to enforce
a judgment for such claim until the same matures.
(C) The rule of lis pendens does not apply to a mechanics’
lien claimant whose lien rights arose or accrued before an
action involving the real property which is the subject of
that lien became pending pursuant to section 2703.26 of the
Revised Code and whose lien is filed within the statutory
period but subsequent to the date the action becomes pending
pursuant to section 2703.26 of the Revised Code.
Effective Date: 4-16-93
1311.22 Liberal Construction
Sections 1311.01 to 1311.22 of the Revised Code are to be
construed liberally to secure the beneficial results, intents,
and purposes thereof; and a substantial compliance with those
sections is sufficient for the validity of the liens under
those sections, provided for and to give jurisdiction to the
court to enforce the same.
Effective Date: 4-10-91
1311.23
Coal Mining Liens
A person who performs labor or work in mining coal or removing
it from the mines, or other labor or work connected therewith,
for a coal or mining company or corporation owning, operating,
or leasing coal mines within this state, by virtue of a contract
with the company or corporation or its authorized agent, has
a lien to secure payment therefore upon the mine thereof,
on all its rights as the owner or lessee of the mines, and
on all its personal property used in conducting the business
of mining coal, whether located at or near the mines or elsewhere.
Effective Date: 4-10-91
1311.25 Public Improvements, Definitions
As used in sections 1311.25 to 1311.32 of the Revised Code:
(A) “Public improvement” means any construction,
reconstruction, improvement, enlargement, alteration, demolition,
or repair of a building, highway, drainage system, water system,
road, street, alley, sewer, ditch, sewage disposal plant,
water works, and any other structure or work of any nature
by a public authority.
(B) “Public authority” includes the state, and
a county, township, municipal corporation, school district,
or other political subdivision of the state, and any public
agency, authority, board, commission, instrumentality, or
special district of or in the state or a county, township,
municipal corporation, school district, or other political
subdivision of the state, and any officer or agent thereof.
(C) “Materialman” includes any person by whom
any materials are furnished in furtherance of a public improvement.
(D) “Laborer” includes any mechanic, workman,
artisan, or other individual who performs labor or work in
furtherance of any public improvement.
(E) “Subcontractor” includes any person who undertakes
to construct, alter, erect, improve, repair, demolish, remove,
dig, or drill any part of any public improvement under a contract
with any person other than the public authority.
(F) “Principal contractor” includes any person
who undertakes to construct, alter, erect, improve, repair,
demolish, remove, dig, or drill any part of any public improvement
under a contract with a public authority.
(G) “Materials” means all products and substances
including, without limitation, any gasoline, lubricating oil,
petroleum products, powder, dynamite, blasting supplies and
other explosives, tools, equipment, or machinery furnished
in furtherance of a public improvement.
(H) “Wages” has the same meaning as “prevailing
wage” in division (E) of section 4115.03 of the Revised
Code.
(I) “Notice of commencement” means the notice
specified in section 1311.252 of the Revised Code.
(J) “Notice of furnishing” means the notice specified
in section 1311.261 of the Revised Code.
Effective Date: 04/16/93
1311.251 Claim for Materials Incorporated
in Public Improvement, Presumptions, Claims for Tools or Machinery
(A) A claim for furnishing materials arises under sections
1311.25 to 1311.32 of the Revised Code only if the materials
are:
(1) Furnished with the intent, as evidenced by the contract
of sale, the delivery order, delivery to the site by the claimant
or at the claimant’s direction, or by other evidence,
that the materials be used in the course of the public improvement
with which the claim arises;
(2) Incorporated in the public improvement or consumed as
normal wastage in the public improvement operations;
(3) Specifically fabricated for incorporation in the public
improvement and not readily resalable in the ordinary course
of the fabricator’s business even if not actually incorporated
in the public improvement;
(4) Used for the public improvement or for the operation of
machinery or equipment used in the course of the public improvement
and not remaining in the public improvement, subject to diminution
by the salvage of those materials; or
(5) Tools or machinery used on the particular public improvement,
subject to division (C) of this section.
(B) The delivery of materials to the site of the public improvement,
whether or not by the claimant, creates a conclusive presumption
that the materials were used in the course of the public improvement
or were incorporated into the public improvement.
(C) A claim for furnishing tools or machinery which arises
under division (A)(5) of this section is limited to either
of the following:
(1) If the tools or machinery are rented, the claim is for
the reasonable rental value for the period of actual use and
any reasonable period of nonuse taken into account in the
rental contract.
(2) If the tools or machinery are purchased, the claim is
for the price, but the claim only arises if the tools or machinery
were purchased for use in the course of the particular public
improvement and have no substantial value to the purchaser
after the completion of the public improvement on which they
were used.
(D) All of the deliveries or the sales, or both, by a claimant
of materials, including tools and machinery to or for an improvement,
give rise to one claim for the unpaid portion of the sales.
Effective Date: 4-10-91
1311.252 Notice of Commencement of
Public Work
(A) Prior to the performance of any labor or work or the furnishing
of any materials in furtherance of a public improvement, the
public authority shall prepare a notice of commencement in
substantially the form specified in division (B) of this section
which shall be made readily available to the public upon request.
(B) The notice of commencement required under division (A)
of this section shall contain in affidavit form all of the
following information:
(1) The name, location, and a number, if any, used by the
public authority to identify the public improvement sufficient
to permit the public improvement to be identified;
(2) The name and address of the public authority;
(3) The name, address, and trade of all principal contractors;
(4) The date the public authority first executed a contract
with a principal contractor for the public improvement;
(5) The name and address of the sureties for all principal
contractors;
(6) The name and address of the representative of the public
authority upon whom service shall be made for the purposes
of serving an affidavit pursuant to section 1311.26 of the
Revised Code.
(C) If the notice of commencement is not made available to
the public prior to the commencement of work on the public
improvement or if the notice of commencement furnished by
the public authority contains incorrect information which
the claimant relies upon to his detriment, the unavailability
of the notice or the incorrect notice shall not adversely
affect the rights of any claimant under sections 1311.25 to
1311.32 of the Revised Code.
Effective Date: 04/16/93
1311.26 Affidavit of Work or Material
for Public Improvement
Any subcontractor, materialman, or laborer who is performing
or has performed labor or work or is furnishing or has furnished
material for any public improvement provided for in a contract
between the public authority and a principal contractor, and
under a contract between the subcontractor, materialman, or
laborer and a principal contractor or subcontractor, at any
time, not to exceed one hundred twenty days from the performance
of the last labor or work or furnishing of the last material,
may serve the public authority an affidavit stating the amount
due and unpaid for the labor and work performed and material
furnished, when the last of the labor or work was performed
and when the last of the material was furnished with all credits
and setoffs thereon, and the post-office address of the claimant.
If a claimant serves an affidavit under this section, he shall
serve the affidavit to the representative of the public authority
named in the notice of commencement.
One or more laborers may authorize an agent to prepare, execute,
file, and serve the affidavit required by this section. The
affidavit may set forth the claims of one or more laborers,
provided that the affidavit separately itemizes the claim
of each laborer and may set forth claims for wages that are
contractually due but are unpaid.
Effective Date: 04/16/93
1311.261 Notice of Furnishing, Service
(A)(1) Every subcontractor and materialman who wishes to exercise
his rights under sections 1311.25 to 1311.32 of the Revised
Code regarding claims for labor or work performed or materials
furnished in furtherance of a public improvement shall serve
a notice of furnishing, in accordance with division (B) of
this section, on the principal contractor whose contract with
the public authority is the contract under which the subcontractor
or materialman is performing labor or work or furnishing materials
within twenty-one days after the date that the subcontractor
or materialman first performed labor or work or furnished
materials on the site of the public improvement, except that
no subcontractor or materialman who is in direct privity of
contract with the principal contractor need provide the notice.
(2) A subcontractor or materialman may serve the principal
contractor with a notice of furnishing pursuant to this section
more than twenty-one days after the subcontractor or materialman
first performed labor or work or furnished materials on the
site of the public improvement. If a subcontractor or materialman
serves the notice, the subcontractor or materialman shall
have the rights of sections 1311.25 to 1311.32 of the Revised
Code with regard to only amounts owed for labor and work performed
and materials furnished during and after the twenty-one days
immediately preceding service of the notice of furnishing.
(B) The notice of furnishing shall be in substantially the
following form:
“Notice of Furnishing (For use in connection with public
improvements)
To: ____________________(Name of principal contractor)
_______________________(Address of principal contractor)
The undersigned notifies you that he has furnished or performed
or will furnish or perform (describe labor, work, or materials)
for the improvement of real property identified as (property
description or address) under order given by (name of subcontractor
or materialman). The labor, work, or materials were first
furnished or performed or will be furnished or performed on
(date).
(Signature of subcontractor or materialman)
(Address of subcontractor or materialman)
(Date).”
(C) Each principal contractor and each subcontractor, on the
date of entering into any agreement with a subcontractor or
materialman, shall provide, in writing, to the subcontractor
or materialman, the name and address of the public authority.(D)
Each principal contractor and each subcontractor, on the date
of entering into any agreement with a subcontractor or materialman,
shall provide, in writing, to the subcontractor or materialman,
the name and address of the principal contractor.
(E) If the principal contractor or subcontractor fails to
provide the name and address of the public authority or the
principal contractor to those in direct privity of contract
and that failure results in the loss of rights under this
section, the affected person may bring an action in any court
of common pleas which would otherwise have jurisdiction over
the action against the person who failed to furnish the information
for any damages resulting from the loss of rights under this
section.
(F) No laborer must serve a notice in accordance with this
section to preserve lien rights under sections 1311.25 to
1311.32 of the Revised Code.
Effective Date: 04/16/93
1311.28
Detained Funds
Upon receiving the affidavit required by section 1311.26 of
the Revised Code, the public authority shall detain from the
principal contractor or from the balance of the funds remaining
in the contract with the principal contractor, an amount,
up to the balance remaining in the contract, that does not
in the aggregate exceed the claim or claims.
The public authority shall not detain any amount requested
by a claimant who is required by section 1311.261 of the Revised
Code to serve a notice of furnishing, unless the claimant
has provided to the public authority a copy of the notice
of furnishing and a sworn statement as to the date the notice
of furnishing was served to the principal contractor, or by
a claimant who is a laborer, unless the laborer serves an
affidavit upon the public authority pursuant to section 1311.26
of the Revised Code.
The public authority shall place any detained funds in an
escrow account as provided for under section 153.63 of the
Revised Code, to be released at the times, in the amounts,
and to the persons ordered by a court of competent jurisdiction
or by agreement of the principal contractor and the subcontractor,
materialman, or laborer who filed the affidavit provided for
in section 1311.26 of the Revised Code or upon a failure to
commence suit as provided in section 1311.311 of the Revised
Code.
Effective Date: 04/16/93
1311.29 Recording Affidavit, Preferences,
Priorities
A subcontractor, materialman, laborer, or person who serves
the affidavit pursuant to section 1311.26 of the Revised Code,
in order to notify other subcontractors, materialmen, and
laborers, within thirty days thereafter, shall file for record
a copy of the affidavit with the county recorder of the county
where the public improvement is situated or with the county
recorder of each of the counties where the public improvement
is situated if the public improvement is situated in more
than one county. The filing for record of the affidavit with
the county recorders gives such subcontractor, materialman,
laborer, or person filing the affidavit as provided in section
1311.26 of the Revised Code, a preference, as to payments
subsequently due from the public authority, over such of his
other subcontractors, materialmen, and laborers who have failed,
prior to the date any such payment is due, to file the affidavit
provided for in section 1311.26 of the Revised Code, and to
file for record the copy thereof with the county recorders
as provided in this section. On detained funds, such claimants
have no priority among themselves, but payment thereon shall
be made to them in amounts prorated according to the amount
of the then-existing valid claim of each. The failure of any
claimant to file for record a copy of the affidavit with the
county recorders does not affect the validity of his amount
claimed with respect to persons other than such of his other
subcontractors, materialmen, and laborers who have filed for
record copies of their affidavits with the county recorders,
and, against detained funds, such claimants who have failed
to make such filing for record with the county recorders have
no priority among themselves, but, after all claims having
preference over theirs have been paid, payment shall be made
to them in amounts prorated according to the amount of the
then-existing valid claim of each.
The recorder shall endorse upon every affidavit the date and
hour of its filing, and record every affidavit filed for record.
For recording or making a copy of the affidavit or certificate
of the date of such filing for record, the recorder is entitled
to the same fees as are provided for in section 317.32 of
the Revised Code.
Effective Date: 04/10/91
1311.31 Notice of Intention to Dispute
Claim, Timing, Requirements, Pro Rata Shares
The public authority, upon the receipt of the affidavit referred
to in section 1311.26 of the Revised Code shall, or the claimant
or his agent, in the name of the public authority, may serve
the principal contractor with a copy thereof, within five
days after the public authority receives it, together with
a notice that the principal contractor must give notice of
his intention to dispute the claim within twenty days. If
the claimant is not in privity of contract with the principal
contractor, the notice of intention to dispute may state that
the claimant failed to serve a notice of furnishing as required
by division (A)(1) of section 1311.261 of the Revised Code.
If the claimant performed the labor or work or furnished the
material to a subcontractor of the principal contractor, the
claimant shall, within twenty days after serving the affidavit
to the public authority, furnish a copy of it to the subcontractor.
If the claimant fails to furnish the copy to the subcontractor,
the claimant forfeits his rights to a claim under sections
1311.25 to 1311.32 of the Revised Code. If the principal contractor
fails within twenty days after receipt of the affidavit to
serve to the public authority written notice of his intention
to dispute the claim, he has assented to its correctness,
provided that within twenty days after receipt by any subcontractor
of a copy of the affidavit, the subcontractor may serve the
notice of intention to dispute on behalf of the principal
contractor. Thereupon, provided all affidavits filed on the
same public improvement have been assented to, the amount
detained from the principal contractor shall be applied by
and payment made by the public authority, in the order of
preference provided in section 1311.29 of the Revised Code,
pro rata, upon the claims on which affidavits have been filed.
Where more than one affidavit has been filed with respect
to the same public improvement, and one or more of the affidavits
has not been assented to, then the amount detained shall be
applied pro rata among all the claimants in the order of preference
prescribed in section 1311.29 of the Revised Code, payment
being made in the amount of their pro rata shares to all claimants
whose affidavits have been assented to, and the pro rata shares
of claimants whose affidavits have not been assented to shall
be detained by the public authority until the dispute with
respect to any affidavit has been resolved in any manner provided
by law, whereupon payment in whole or in part shall be made
to claimants in whose favor the dispute is resolved and any
remaining part of the pro rata shares shall be applied pro
rata among and payment made to all claimants as provided in
this section. Each subsequent payment falling due shall be
applied among and payment made to the claimants as provided
in this section.
Effective Date: 04/16/93
1311.311 Notice to Commence Suit, Limitations,
Release Bond, Suit, Attorneys Fees
Any public authority or any principal contractor or subcontractor
who receives a copy of the affidavit required by section 1311.26
of the Revised Code, as provided in section 1311.31 of the
Revised Code, may notify the claimant or his agent, to commence
suit. Proof that this notice was served in accordance with
section 1311.19 of the Revised Code, may be made by affidavit
filed with the public authority or clerk or agent thereof.
If the claimant fails to commence suit within sixty days after
the date of the service of the notice, the affidavit filed
pursuant to section 1311.26 of the Revised Code is void and
the funds are to be released to the principal contractor.
This section does not preclude the collection of the claim
in any manner in which any claim may otherwise be collected.
An affidavit filed pursuant to section 1311.26 of the Revised
Code is void and the funds upon which it is sought to be imposed
wholly discharged from the affidavit filed pursuant to section
1311.26 of the Revised Code if the principal contractor or
any subcontractor or interested party acting in his name gives
the notice to commence suit and files with the public authority,
a bond in the amount equal to one and one-half of the claim
in favor of the claimant, executed by sufficient surety, approved
in writing by the public authority, and conditioned upon the
payment of any judgment upon the claim, plus costs.
If the public authority fails to discharge the affidavit filed
pursuant to section 1311.26 of the Revised Code and make payment,
the principal contractor or subcontractor may file an action
in the court of common pleas of the county in which the property
is located except that if the action is against a state officer,
the principal contractor or subcontractor shall file the action
in the court of common pleas of Franklin county. If the court
determines in the action that the public authority improperly
failed to discharge the affidavit and make payment, the court
may award reasonable attorney fees.
The bond is void upon the failure of the claimant to commence
suit within sixty days after the date of the service of the
notice or, if the claimant commences suit within the required
time period, upon the satisfaction of any judgment that is
entered in favor of the claimant, upon final judgment against
the claimant, or upon dismissal of the suit for any reason.
Effective Date: 04/10/91
1311.32 Action to Recover Claim
The duty to pay to claimants the amounts and in the order
of preference, as provided in sections 1311.29 and 1311.31
of the Revised Code, may be enforced by an action in the court
of common pleas or the subcontractor, materialman, or laborer
may, when the amounts are due, recover through the public
authority in the court of common pleas the whole or a pro
rata amount of his claim or estimate, not exceeding in any
case the balance due to the principal contractor. Either of
these actions shall be brought in the county in which the
public property involved is situated, except that actions
against state officers shall be brought only in Franklin county.
The court shall resolve all disputes concerning whether the
affidavit filed pursuant to section 1311.26 of the Revised
Code has been perfected and concerning priorities, that may
arise from enforcement of the affidavit or the bond that secures
the affidavit, pursuant to section 1311.311 of the Revised
Code.
Effective Date: 04/10/91
1311.34 Liens for Wages
Employees of any person, association of persons, or corporation,
whether such employment is at agriculture, mining, manufacture,
or other manual labor, have a lien upon the real property
of their employers for their wages. The lien is superior to
the following liens taken or attaching during the existence
of the unpaid labor claim:
(A) Liens of attachment;
(B) Liens of mortgage that are:
(1) Given or taken at a time of actual insolvency of the debtor;
(2) Given with a view of preferring creditors;
(3) Given to secure a pre-existing debt.
Liens upon real property of employers for wages are superior
to all exemptions. If an employer is placed in the hands of
an assignee, receiver, or trustee, claims due for labor performed
within the period of three months prior to the time the assignee,
receiver, or trustee is appointed, shall first be paid out
of the trust fund, in preference to all other claims against
the employer, except claims for taxes and the costs of administering
the trust.
Effective Date: 9-28-79
1311.35 Itemized Statement of Labor
Performed, Recording
The liens in section 1311.34 of the Revised Code are waived
by the employee, as to any portion of such labor, unless within
thirty days from the expiration of three months from the performance
thereof, he files with the county recorder of the county where
the labor was performed an itemized statement, verified by
affidavit, of the amount, kind, and value of the labor performed
within such period, with all credits and offsets and the amount
then due him therefore. Such statement, when filed, must be
recorded in a book kept for the purpose, and becomes a lien
upon the real property of the employer without any specific
description thereof, for the period of one year from the filing
of the statement.
Effective Date: 10/01/53
1311.36
Foreclosure Procedure, Priorities
If
an action is brought to enforce the lien within the time provided
in section 1311.35 of the Revised Code, it continues in force
until finally adjudicated. The proceedings to enforce it are
the same as in other cases of lien, against the owner of the
property and all other persons interested. If several persons
have or obtain liens under sections 1311.34 and 1311.35 of
the Revised Code, against the property of the same employer,
they have no priority among themselves, but all must be paid
pro rata. Such persons do not have priority over those obtaining
other liens under this chapter but the persons obtaining liens
under this chapter have priority as provided in this chapter.
Effective
Date: 4/10/91
1311.37
Indirect Labor
Sections
1311.34 to 1311.36, inclusive, of the Revised Code apply to
and include any laborer who indirectly performs labor for
a general employer, or the results of whose labor is immediately
enjoyed by a general employer, when such general employer
assumes payment of his wages by passing a credit therefore
upon his books of account or otherwise. All proceedings under
this section shall be the same as provided by such sections.
Effective
Date: 10/01/53 |
