Help in Getting Paid – Ohio's Mechanics' Lien Law - Frost Brown Todd

Help in Getting Paid – Ohio’s Mechanics’ Lien Law
By D. Scott Gurney, Esq.
Sometimes the hardest part of a construction project is getting paid. The punchlist is finished, you are
ready to go on to the next job, but the owner or general contractor is refusing to pay the final draw or
retainage. In many cases the mechanics' lien law can help, but only if it is properly followed.
Unfortunately, contractors all too often lose their lien rights by not following the fairly simple steps
necessary to preserve a lien claim. This article reviews a few of the nuts and bolts regarding Ohio's
mechanics' lien law.
What Is A Mechanics' Lien?
Generally, on private commercial projects and residential construction projects, a properly perfected
mechanics' lien creates an interest in the improved real estate which secures payment for certain types of
construction services and materials furnished on the project. If the lien claimant is unable to obtain
payment, a perfected lien enables the claimant to file a lawsuit to force the sale of the property, which
may result in the claimant being paid from the proceeds. A mechanics' lien, however, is not a guarantee
of payment. On public projects, a lien does not attach to the real estate or buildings, but rather to a fund
of money due from the public authority to the principal contractor. On public projects, only subcontractors
and material suppliers, not principal contractors, can make lien claims, while principal contractors,
subcontractors, laborers and material suppliers can all make lien claims on private projects.
Notice Of Commencement
On private commercial projects, the process begins with the filing of a Notice of Commencement (NOC)
by the owner or its representative. Owners on commercial projects are required to (1) file a NOC with the
county Recorder before construction begins, (2) serve the NOC on all original contractors, (3) post and
maintain the NOC conspicuously on the project site, and (4) provide a copy of the NOC to any
subcontractor, material supplier or laborer within 10 days of a written request. Contractors should
routinely make a written request for a copy of the NOC at the beginning of every project. The NOC is
designed to provide the information necessary to file a lien affidavit, should that become necessary.
On a public project, the public authority is required to prepare a Notice of Commencement and make it
readily available to the public. The public authority is not required to file the NOC with the county
Recorder, serve it on the principal contractors, or post it on the project. Each contractor and
subcontractor must provide to its subcontractors and material suppliers the names and addresses of the
public authority and principal contractors.
Notice of Furnishing
On private projects, subcontractors and material suppliers must serve a Notice of Furnishing (NOF) in
order to preserve lien rights. In order to fully preserve lien rights, the NOF must be served on the
principal contractor and owner within 21 days after first beginning work or providing materials. A NOF
may be served later, but it will preserve lien rights only for amounts owed for work performed and
materials furnished within the immediately preceding 21 days and thereafter. A subcontractor or material
supplier that does not serve a NOF at all loses all of its mechanics' lien rights unless either (1) the NOC
has not been filed, or (2) a proper request for a copy of the NOC has been ignored.
Most of the information for the NOF can be taken from the NOC. The NOF must be in substantially the
same form as described in the statute and must include, among other things, (1) the names and
addresses of the owner (or designee) and original contractor; (2) the name and address of the contracting
party; (3) the location of the property; (4) the date that work or materials were first furnished; and (5) a
specific warning to the owner regarding the possible consequences of failing to comply with the
mechanics' lien law.
In order to preserve a lien claim against funds on a public project, any material supplier or lower-tier
subcontractor that does not have a contract directly with a principal contractor must serve a Notice of

Furnishing on the principal contractor. The same 21-day rule for commercial projects also applies to
public projects.
The Notice of Commencement and Notice of Furnishing procedures apply to residential projects, except
those where the owner uses or intends to use the property as his or her personal residence and the
property is a 1 or 2 family dwelling or a condominium unit.
Time Limits For Filing Liens
Assuming you have properly served the Notice of Furnishing, how long do you have to file a lien? On
commercial projects, a mechanics' lien affidavit must be recorded with the county Recorder within 75
days from the date on which the lien claimant last worked or furnished materials. A lien affidavit must
also be served on the owner of the property within 30 days after filing with the county Recorder. If the
owner cannot be found, a copy of the lien must be posted conspicuously on the project site.
On public projects, lien claims must be filed with the public authority within 120 days from the last day the
claimant provided work or materials on the project. To obtain priority over unrecorded claims, the
claimant should also file a copy of the affidavit with the county Recorder within 30 days after filing with the
public authority. If the claimant is a sub-subcontractor or a supplier to a subcontractor, the claimant must
also serve a copy of the lien affidavit on the subcontractor within 20 days after serving the affidavit on the
public authority.
The time period for filing a lien on a residential project is just 60 days from the last date the lien claimant
performed labor or provided materials. However, all lien rights on a residential project are extinguished if
the owner has paid the principal contractor in full before the owner's receipt of the lien affidavit.
Final Observation
Some subcontractors and material suppliers decide not to serve a Notice of Furnishing because they
worry it might "rock the boat" and cause tension with the owner or general contractor at the beginning of
the project. Others just do not want to add to their "paperwork". But neglecting to preserve your lien
rights can be a big mistake. Owners and general contractors generally understand and expect that a
Notice of Furnishing will be served. The bottom line is that if you do not preserve your lien rights, you
may find it much harder to get paid at the end of the project.
Published in The Constructor (Allied Construction Industries/AGC-Cincinnati)Scott Gurney is Chairman of the
Construction Law Group of Frost Brown Todd LLC. He can be contacted at (513) 651-6841 or sgurney@fbtlaw.com.
This article is presented for educational purposes. Neither the author nor Frost Brown Todd LLC, nor their present or
future clients, can be bound by the opinions, comments and interpretations expressed herein.