Home>Levelset Community>Legal Help>As a material supplier, is the Preliminary Notice to a General Contractor mandatory if they are not known yet?

As a material supplier, is the Preliminary Notice to a General Contractor mandatory if they are not known yet?

OhioPreliminary Notice

Hello, we are a Material Supplier hired by a Property Owner for a Commercial Project Site in Ohio. It says on the preliminary notice information that "Suppliers Must Send Notice - Notice of furnishing due within 21 days of first furnishing labor or materials - or 21 days from the filing of a notice of commencement, if the notice of commencement is filed late - on projects other than single or double residences." Is it only when the notice of commencement is late? When submitting, it says it may not be required depending on our role. Also, right now, the General Contractor is not known right now. Is it mandatory to send a General Contractor a preliminary notice in Ohio on time to perfect a mechanic's lien if it comes to that? Or will just the Property Owner suffice? Thank you.

1 reply

Mar 24, 2020

Ohio's Notice of Furnishing requirements can be a little confusing, so let's break them down in great detail here. Of course, these resources should also provide some insight: (1) Ohio Preliminary Notice Guide and FAQs; and (2) Ohio Notice of Furnishing: The Why, Who, What, When, and How.

Ohio's Notice of Furnishing requirements

Let's look at a few different ideas, separately. But, note that almost every topic will come back to this idea: Notice of Furnishing is only required when a Notice of Commencement has been filed. For a deep dive on the state's Notice of Commencement requirements: Ohio Notice of Commencement FAQs & Guide.

Notice of Commencement and the Notice of Furnishing requirements

Generally, a Notice of Furnishing will only be required if a Notice of Commencement was filed on the project. But, keep in mind that (1) it's a good idea to send a preliminary notice, regardless of what's required; and (2) it's not always easy for a subcontractor or supplier to find the Notice of Commencement. So, even if a Notice of Commencement wasn't filed, it may be wise to send a Notice of Furnishing. If you aren't sure whether a Notice of Commencement was filed, the best bet is to check to see if a Notice of Commencement has been posted somewhere on the project site (like at the site office, or where other permits and notices are displayed) or to check the property record for a Notice of Commencement. Additionally, keep in mind that many Ohio subs and suppliers will put a request for the Notice of Commencement right there on the Notice of Furnishing. And, if the Notice of Commencement info is requested from the property owner, it must be provided (pursuant to ORS § 1311.04).

What types of projects require a Notice of Furnishing?

Only projects with a Notice of Commencement filed will require a Notice of Furnishing. As you referenced in your question above, home purchase contracts won't require a Notice of Commencement - but all other job types will. ORS § 1311.011(2) defines a home purchase contract as "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 the purchaser’s personal residence." Admittedly, that's pretty confusing language from Ohio legislators. But, referring back to the above - subs and suppliers can just look for a Notice of Commencement on the job. If one isn't filed, then Notice of Furnishing isn't required.

Timeline for sending a Notice of Furnishing

If a Notice of Commencement has been filed, then a sub or supplier will have 21 days from their first furnishing date to send a Notice of Furnishing. And, if the project's contractor has filed their Notice of Commencement late, then subcontractors and suppliers are able to send their Notice of Furnishing within 21 days of when the Notice of Commencement actually gets filed.

What happens if a Notice of Furnishing is sent early?

It's generally a good idea to make sure that notice is sent after furnishing has begun on the project. And, if your work begins before the Notice of Commencement is filed, then you may not have all the information you need to properly send the notice - such as the identity and contact information of the project's GC. Note, though, that sending notice too early can invalidate the Notice of Furnishing (that is, only if one is actually required). Further discussion here: Send Ohio Notice of Furnishing Fast…But Not Early.

Will Notice of Furnishing be effective if it isn't sent to all necessary parties?

Generally, no. When Notice of Furnishing is required, it must typically be sent to the owner and the GC (though, when hired directly by the GC, sending that GC notice isn't necessary). So, sending only to the owner won't preserve lien rights. But again - a Notice of Furnishing is only required if the Notice of Commencement was filed (and posted). So, if there's no Notice of Commencement, then Notice of Furnishing being "ineffective" doesn't really matter. And, if the Notice of Commencement is filed, then it should be very easy to make sure the GC gets notice.

0 people found this helpful

Helpful