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Customer bought material on a P.O., then transferred it to another job, with out our knowledge

OhioLien DeadlinesPreliminary Notice

Probably not a question you can answer, but we had a contractor take material from a job site, and use it on another job, that he was not authorized to use it on. Then he started buying product for the new job, and we would like to file a notice of furnishings on it. We are well within the 21 days to file the notice on the product that was properly purchased and shipped to the new job, but past the 21 day on the product he used that he was not authorized to ship to the new job (he bought it under the old job's P.O. and had it shipped to the old job). We would like to cover that very expensive product that is beyond 21 days.... Should I file a notice going back beyond 21 day to the point when we have now discovered the product was moved from one job to the other, or should I file it within the 21 days, and include the unauthorized product? This guy is a dirt bag, and not trustworthy.

1 reply

Sep 14, 2017
General best practices are always to send preliminary notice within the required deadline. Presumably, since you are looking to protect the furnishing of materials on the second job, you sent the notice of furnishing on the first job within the statutory time period, as well. If this is the case, and a timely notice of furnishing is sent on the second project, it is likely that all materials delivered are protected.

First, it is worth noting that a notice of furnishing is not required if the "owner, part owner, or lessee who contracted for the labor, work, or materials fails to record a notice of commencement." However, in the event a notice of commencement was filed, it is likely all materials are still protected.

"A mechanic’s lien for furnishing materials" arises under a specific list of circumstances, once of which is that the materials are "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." Additionally, "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."

Accordingly, the materials delivered to the first job site should be covered under the first notice of furnishing, and the materials (correctly) delivered by you to the second job site should be covered under the second notice of furnishing (presuming both were given timely).

It is rarely a good idea to modify the dates to something other than the "actual" dates. The date that of first furnishing is not decided by some other party's improper act.
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