Ohio
Ohio
Ohio
Ohio
Ohio
Ohio
When a new construction job is starting Ohio, there is a lot of things that need to be done. One of these things is the filing of an Ohio Notice of Commencement. All parties on the project have an interest in the Notice of Commencement because it affects everyone’s rights and obligations. While the form itself is not a complex document, the procedural requirements for an Ohio Notice of Commencement can be confusing, and many construction participants have questions about what it is, what it does, and why its needed.
Generally speaking, a Notice of Commencement is a form that is filed in the public records of the county in which the project is going to occur to let people know that a construction project is beginning. The form contains information identifying the people involved with the project, such as who the property owner and construction lender, and identifies the project itself, such as the type of work being performed and the legal description of the property on which the work is being performed. This information provides sub-tier parties with the information needed to comply with Notice of Furnishing and lien claim requirements.
In Ohio, the information required to be contained on a Notice of Commencement is set out by Ohio’s Construction Lien Law, R.C. § 1311.04. The form is not a complex document, and templates can be easily found to fill in, file, post, and serve – many county websites have forms available for download. Or, of course, you can make the NOC process really easy by just filing the document online.
This page provides frequently asked questions, forms, and other helpful information about Ohio’s Notice of Commencement. Read on to learn more about the rules, requirements, and effects of Ohio’s Notice of Commencement.
Watch this short video that explains important Notice of Commencement requirements in easy to understand terms.
Yes. Ohio statutes are strict and clear that a Notice of Commencement is required and “shall” be recorded prior to the commencement of work on private projects, other than projects where the improvement is the subject of a home purchase contract. As outlined by this Expert Center answer to a question about the necessity of a Notice of Commencement in Ohio, property owners are required to both have the notice recorded, and posted on the property.
All jobs in Ohio other than those improvement subject to a home purchase contract require a Notice of Commencement to be filed and posted on the property.
It is very important to comply with the NOC rules and requirements because there are legal consequences to all parties on a construction job if the notice of commencement is not filed.
In Ohio, the property owner, part owner, or lessee is the only party who is specifically required to record and post the Notice of Commencement. Ohio statutes state that “the owner, part owner, or lessee who contracts for the labor, work, or materials shall record” the Notice of Commencement. And, unlike some other states in which the necessity of filing the Notice of Commencement is shifted to other parties in some cases, Ohio keeps the responsibility on the contracting property owner and only allows (but does not require) other parties like a lender or original contractor to file the notice.
Interestingly, and just like Michigan, despite the fact that specific wording of Ohio law seems relatively strict in requiring the owner, part owner, or lessee to record the Notice Commencement, Ohio specifically allows the affidavit verifying the notice of commencement to be signed by “the agent of the owner, part owner, or lessee.” This means that, since the document may be signed by an “agent” appointed for that purpose, it is not unusual for Ohio property owners to appoint the GC as an agent for signing and filing the notice, as set forth in this Expert Center answer.
Additionally, while Ohio never mandates that a party other than the owner file and post the Notice of Commencement, the laws do specifically allow for the notice to be filed and posted by other parties in certain circumstances. If the owner, part owner, or lessee does not record a Notice of Commencement, any person holding a mortgage on the real property to be improved may record a notice of commencement on behalf of the owner. And, if the contracting owner has not filed a Notice of Commencement by the later of ten days after work begins or three days after the original contractor serves a demand for the owner to file the notice, the original contractor may record a notice of commencement on behalf of the owner. In either case, the owner remains liable for the costs of finding the information required by the notice, and for the costs of preparation and filing the notice.
In Ohio, the technical deadline for filing a Notice of Commencement is “[p]rior 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.” Since there is generally not that much time between contracting for the work to begin and the actual beginning of the work, this requirement means that the contracting property owner must be on the ball with respect to getting the Notice of Commencement filed and recorded before the start of work.
The required language of the notice itself provides that “labor or work is about to begin on or materials are about to be furnished.” [emphasis added] However, while the language seems mandatory that the notice be completed, filed, and posted prior to work, filing and posting the notice later is allowable.
There are consequences to filing the notice “late,” however. If the owner fails to record the notice of commencement prior to work beginning, the time within which a subcontractor or material supplier may serve a notice of furnishing is extended until twenty-one days after the notice of commencement has been recorded, with no notice being required for work done in the period prior to the notice being recorded. And, if the notice is not recorded at all, no subcontractor or material supplier is required to serve a notice of furnishing in order to preserve lien rights.
It is also important to note that a copy of the Notice of Commencement may be requested by any party furnishing labor or material to the project, and if a copy is requested, it must be provided within 10 days from receipt of the request.
Ohio requires that a Notice of Commencement be filed: “in the office of the county recorder for each county in which the real property to be improved is located,” that “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,” and that the notice be served on the original contractor.
Accordingly, this means that there are 3 distinct steps that must be undertaken:
1. Getting it Filed
The first step is delivering the Notice of Commencement to the county recorder in the county (or counties) where the construction project is located. Levelset makes this information and recording requirements easy to find – you can find a handy guide to Ohio county recorders and filing requirements here. You can also file your Ohio Notice of Commencement electronically here.
2. Getting it Posted
The second part of the requirement is that property owners must make sure that the notice of commencement document is displayed in a conspicuous place at the project job site itself, and remains posted there through the duration of the project.
3. Service on the Original Contractor
Finally, the contracting owner is required to “serve a copy of the notice of commencement upon the original contractor.” If the owner fails to do so s/he 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.”
Yes. In states that have NOC requirements it’s common that an “Owner’s Designee” can be appointed in the NOC itself. This is specifically allowed in Ohio, as part of the information to be included on the NOC is “[t]he name and address of the owner’s, part owner’s, or lessee’s designee, if any.”
In general terms, a designee is a party chosen by the owner or lessee to receive notice on their behalf. While the appointment of a designee can decrease the paperwork burden on the property owner, and can help the owner or lessee manage the receipt of notice documents it’s important to make sure any designee chosen is up to the task. Since the property owner is the party who would ultimately be wrapped up in any potential lien claim arising on the project, s/he may want to receive notices of furnishing personally in order to get insight into the identity of the project participants and exert some control over the payment process.
As noted above, a Notice of Commencement is required in Ohio, and, the failure to file, post, serve, and supply the notice as required can open up the project, property, GC, and owner to “hidden” mechanics lien claims, and render the owner liable for additional expenses.
Generally, in order to retain the ability to file a mechanics lien in Ohio, a subcontractor or supplier must provide a notice of furnishing. This document is required to inform the interested parties with whom the sub or supplier has no direct contract that the sub/supplier is providing labor or material to the job and that they have lien rights.
However, if a Notice of Commencement is not filed, the requirement for subs and suppliers to provide preliminary notice in order to retain lien rights is waived, and any party can file a valid and enforceable lien, even without providing the notice or otherwise identifying themselves to the interested parties.
Also, the failure of a party to provide a copy of the Notice of Commencement when requested to do so can result in additional liabilities.
Yes. Unless the Notice of Commencement itself (or any amendment thereto) specifies otherwise, an Ohio NOC expires six years after its filing date according to § 1311.04(S).
Yes.
Ohio law requires that a Notice of Commencement contain “[a]n affidavit of the owner, part owner, or lessee or the agent of the owner, part owner, or lessee which verifies the notice.” While a verification is different than a notarization, an affidavit is a sworn statement taken by a notary (or judge, clerk of court, etc.). Since the Notice of Commencement must contain an affidavit, it must be notarized.
No, an Ohio Notice of Commencement does not need to be terminated or released. In fact, there is no specific notice or process set forth by Ohio statutes for the termination of a previously filed notice of commencement, and in any event, the NOC automatically expires 6 years after filing.
No. The Notice of Commencement requirement in Ohio is exclusively for the property owners (and available to mortgage holders and original contractors). Subcontractors and suppliers do not need to file a NOC, but they do have their own preliminary notice requirement — called a notice of furnishing.
Yes.
Generally, in order to retain the ability to file a mechanics lien in Ohio, a subcontractor or supplier must provide a notice of furnishing.
However, if the owner fails to record the notice of commencement prior to work beginning, the time within which a subcontractor or material supplier may serve a notice of furnishing is extended until twenty-one days after the notice of commencement has been recorded, with no notice being required for work done in the period prior to the notice being recorded.
And, if the notice is not recorded at all, the requirement for subs and suppliers to provide preliminary notice in order to retain lien rights is completely waived.
Not really.
As described above, if the Notice of Commencement is not filed, there is no requirement for subs and suppliers to provide a notice of furnishing in order to retain lien rights – but the lien right itself is not affected. In Ohio, anyone furnishing labor or materials to a construction project has a right to file a mechanics lien if they are unpaid, provided the associated requirements are met.
It should be pretty easy to find an Ohio Notice of Commencement.
First, Ohio requires that the Notice of Commencement be posted in a conspicuous place on the property being improved, and remain posted throughout the duration of the project. However, some parties, like a material supplier or equipment lessor may never go to the project site directly. In these cases, and for anybody who doesn’t see the notice on the site, Ohio requires that a copy of the Notice of Commencement be provided to any project participant who requests one, within 10 days of the request.
Yes. Unlike other states with NOC requirements, Ohio also requires the preparation of a Notice of Commencement on public projects.
The public NOC is to be prepared by the public entity contracting for the work, and must include 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.
For public projects in Ohio, the Notice of Commencement is required to be prepared and made available to the public by the public authority contracting for the public improvement. If the notice is not prepared and made available prior to the commencement of work, the unavailability or incorrectness of the notice will not adversely effect the rights of a bond claimant.
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Ohio’s private mechanic’s lien statute is found within Ohio’s Construction Lien Law, R.C. § 1311.01 et. seq. The specific rules and requirements regarding Ohio’s Notice of Commencement content and procedures are set forth in § 1311.04. Notice of Commencement. You can read the law directly on the state legislature’s website here, and it is reproduced below. Further, §1311.04 is a selected excerpt from the full construction lien statute in Ohio. You can see this full statute on our Ohio Mechanics Lien FAQs page.
(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 the above-named designee’s 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 the claimant’s 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, material supplier, 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, material supplier, or laborer.
(E) Within ten days after the date a subcontractor, material supplier, 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, material supplier, or laborer has a direct contract, the original contractor shall serve a copy of the notice of commencement to the requesting subcontractor, material supplier, or laborer.
(F) Within ten days after the date a subcontractor, material supplier, 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, material supplier, or laborer has a direct contract, the subcontractor shall serve a copy of the notice of commencement upon the requesting subcontractor, material supplier, 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 material supplier 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. A subcontractor or material supplier need not serve a notice of furnishing to preserve lien rights for the period before the notice of commencement is 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 material supplier 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 material supplier. The owner, part owner, or lessee who fails to serve the notice pursuant to this section is liable to any subcontractor or material supplier 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, material supplier, 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, material supplier, or laborer who requests it, the original contractor or subcontractor who fails to serve the copy of the notice is liable to the subcontractor, material supplier, or laborer who made the request for all costs incurred by the subcontractor, material supplier, 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, material supplier, or laborer with whom the original contractor or subcontractor 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 the designee of an owner, part owner, or lessee 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 the owner’s, part owner’s, or lessee’s 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 the duty to pay the original contractor’s subcontractors, material suppliers, 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, material suppliers, 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 a home construction contract as defined in section 1311.011 of the Revised Code, except that when a lending institution as defined in division (A)(3) of section 1311.011 of the Revised Code requires that a notice of commencement be recorded as part of the financing for a home construction contract, which is secured in whole or in part by a mortgage on real estate upon which the improvements are to be constructed, the owner, part owner, or lessee may file a notice of commencement pursuant to this section by recording the notice of commencement in the county recorder’s office of the county where the owner, part owner, or lessee’s property is located. If the property is located in more than one county, the owner, part owner, or lessee shall record the notice of commencement in the county recorders’ office of each county in which the property is located.
If the owner, part owner, or lessee files a notice of commencement pursuant to this division, the attachment, continuance, and priority provisions of section 1311.13 of the Revised Code apply to that improvement, but the notice of furnishing requirements specified in section 1311.05 of the Revised Code do not apply to that improvement.
(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, the owner, part owner, or lessee 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 material supplier 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 the subcontractor’s or material supplier’s lien rights.
(S) A notice of commencement filed as provided herein expires six years after its filing date unless the notice of commencement or amendments made to the notice of commencement specify otherwise.
