How do I serve an Ohio lien when the owner can’t be served?

3 months ago

I performed work on an Ohio project, but went unpaid. I ended up having to file a lien since the deadline was coming up. The owner still refuses to talk to me, and they won’t accept service for the Notice of Lien I mailed to them.

How can I serve notice of this lien filing if they won’t cooperate? Can I post the notice directly to the property?

Any input would be appreciated.

Senior Legal Associate Levelset

That’s a great question, and I’m sorry to hear you’ve had some payment trouble on this job. An owner avoiding service of a lien is a relatively common issue. Luckily, Ohio has multiple service methods available – and they don’t all require the owner’s cooperation. Let’s look at traditional service methods first, then look at the potential for posting a Notice of Lien to the project property.

Ohio Notice of Lien, generally…
First, a look at the rule: In Ohio, once a mechanics lien is filed, it must be served on the owner within 30 days. This service must be made pursuant to § 1311.19 of the Ohio lien statute. Under § 1311.19(A)(1) and (2), where the owner is not a corporation, this notice can be made (1) via personal service, through the sheriff; or (2) via registered or certified mail, hand delivery, or by any method where it can be proved that the owner actually received notice. Typically, the second option is chosen since it’s much easier to send registered or certified mail than it is to have the sheriff serve a notice of lien.

In a situation where the mail isn’t being picked up or is being refused, there are a few things to consider. First, regardless of any mailing, if service is made via the sheriff, then it can generally be completed even when the owner(s) aren’t cooperating. Further, notice can be hand delivered or made in some other way if it can be proven that the owner has actually received the notice. So, a notice can be delivered by hand if it can be proven the service actually happened – things like pictures, video, or an affidavit swearing that the notice was delivered could potentially serve as that proof of service. Even further, if there was a Notice of Commencement on the project, and if the notice was mailed to the owner’s address on the Notice of Commencement, mailing the Notice of Lien to the owner’s address on that Notice of Commencement is actually sufficient. Under § 1311.19(B), if service is attempted at the address in the Notice of Commencement, it’s complete when first attempted there – regardless of whether the service is actually successful.

As for posting the Notice of Lien at the project site…
Ohio provides a sort of “back up” service option, but it should really be relied upon as a last resort. In Ohio, if service can’t be made under the traditional methods (set out by ORC § 1311.19), a lien claimant can actually post their notice directly on the property. Under § 1311.07, “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.

So, in a situation where service can’t be made by some traditional method within 30 days, a lien claimant will actually be entitled to an extra 10 days, during which time they can post the copy of the filed lien “in some conspicuous place on the premises of the improved property…” It’s hard to nail down what’s considered a “conspicuous place” since the Ohio lien statute doesn’t clarify that point, but there are some general considerations to keep in mind. Typically, a conspicuous place means someplace that’s open and obvious – somewhere where the owner of the property can’t miss it. So, places like the entrance and exit of the property might work, as well as any other parts of the property that a posted document would be really obvious to the owner of the property. But posting somewhere that might not be as obvious and open – like leaving on the inside of a mailbox – might not be considered “conspicuous”.

Bottom line

With all of the above in mind, it’s important to remember: Posting a copy of a lien to serve as notice is a last resort, and under the Ohio lien statute, this method is only allowable when other service methods can’t be completed. So, before resorting to posting at the job site, every effort should be made to use a traditional Ohio service method.

For more information on Ohio’s lien laws, these resources should be valuable:
(1) Ohio Mechanics Lien Overview
(2) How to File an Ohio Mechanics Lien.

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