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
