How to File a Mechanic's Lien
Ohio Revised Code chapter 1311 governs the process of filing mechanic's liens. The process for filing a mechanic's lien is a bit different depending on what type of property the work is being performed on. Generally, if it is commercial property being worked on then a Notice of Commencement will be filed and a Notice of Furnishing will need to be prepared in addition to the Affidavit of Mechanic's Lien. If a Notice of Commencement is not filed, the person or company desiring to file the lien will have to prepare an Affidavit of Mechanics' Lien and provide notice to the property owner.Generally, anyone can file a mechanics' lien on real property if they perform work or services upon real property that improves the property. The Ohio Revised Code provides as follows, in part, in Section 1311.02:
"Every person who performs work or labor upon or furnishes material in furtherance of any improvement undertaken by virtue of a contract, express or implied, .... [H]as a lien to secure the payment therefore upon the improvement and all interests that the owner, part owner, or lessee may have or subsequently acquire in the land or leasehold to which the improvement was made or removed."
Basically, when work is performed or materials furnished for the improvement of real property, then a lien is created in favor of the person/company doing the work or providing the materials. However, the proper steps must be taken to file and enforce the lien.
Recording Notice of Commencement
The Notice of Commencement is a requirement imposed upon the property owner. Ohio Revised Code section 1311.04, provides as follows about the Notice of Commencement, in part:"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 mechanic's lien ... the owner ... 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 ..."
By filing a Notice of Commencement before work begins on a property, the property owner basically puts everyone on notice that in order to file a mechanic's lien, anyone performing work on the property must first file a Notice of Furnishing.
The Notice of Commencement must be posted in a conspicuous place unless the property is a property subject to a home purchase contract. In that case, the party performing the work will have to request a copy of the Notice of Commencement and will be entitled to receive it within ten days of the request. See Ohio Revised Code sections 1311.04(C) - (G).
Notice of Furnishing
The Notice of Furnishing requirement is imposed upon the person doing the work or furnishing the material. This requirement only applies if the property owner properly filed a Notice of Commencement. Ohio Revised Code section 1311.05, provides, in part:"A subcontractor or material supplier who performs labor or work upon or furnishes material in furtherance of an improvement to real property and who wishes to preserve the subcontractor's or material supplier's lien rights shall serve a Notice of Furnishing, if any person has recorded a Notice of Commencement ..."
The Notice of Furnishing must be provided to the property owner with 21 days after performing the first work or furnishing the first materials (the time is extended if the owner failed to file or furnish the Notice of Commencement on time).
Whether or not a Notice of Commencement was filed and the Notice of Furnishing was produced in turn, in order to make the lien effective, an Affidavit of Mechanic's Lien will have to be prepared and filed in the county recorder's office.
Affidavit of Mechanic's Lien
If a Notice of Commencement was filed, then the lienholder must first provide a Notice of Furnishing and then an Affidavit of Mechanic's Lien. If no Notice of Commencement was filed then no Notice of Furnishing needs to be provided and the first step that the lienholder takes is preparing and filing the Affidavit of Mechanic's Lien. Ohio Revised Code section 1311.06 governs the process of filing an Affidavit of Mechanic's Lien, and it provides in part:"Any person [who wishes to file a Mechanic's Lien] shall make and file for record in the office of the county recorder in the counties in which the improved property is located, an affidavit showing the amount due over and above all legal setoffs, a description of the property to be charged with the lien, the name and address of the person to or for whom the labor or work was performed or material was furnished, the name of the owner, part owner, or lessee, if known, the name and address of the lien claimant, and the first and last dates that the lien claimant performed any labor or work or furnished any material to the improvement giving rise to the claimant's lien."
The affidavit has to be filed within 60 days from the date on which the last labor or work was performed or material furnished by the person claiming the lien.
