Ohio notice of furnishing, free and word for word from ORC 1311.05

Who has to serve one, and who never does

ORC 1311.05(A) puts this duty on 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 lien rights, and only where somebody has recorded a notice of commencement under section 1311.04. That last condition is doing a lot of work, and the rest of the section spends its length taking people back out again.

No original contractor has to serve one to preserve lien rights arising from a contract with an owner, part owner, or lessee. No material supplier in direct privity of contract with an owner, part owner, or lessee has to serve one on that owner or the designee. No subcontractor or material supplier in direct privity of contract with the original contractor has to serve one on the original contractor, though the designee still has to be served. And division (G) is one sentence long: no laborer must serve a notice of furnishing to preserve lien rights.

There is one more carve-out that catches people on houses. If a recorded notice of commencement for an improvement involving a single- or double-family dwelling states that multiple original contractors are involved, a subcontractor or material supplier does not have to serve a notice of furnishing on any original contractor at all. The designee still gets one.

The practical reading is simple. If you signed with the owner, you are out. If you are a laborer, you are out. If you are a sub or a supplier standing one rung below somebody who signed with the owner, and a notice of commencement exists, this form is your lien.

Twenty-one days from your first day, not from the invoice

The clock in ORC 1311.05(A) starts within twenty-one days after performing the first labor or work or furnishing the first materials. Not the last, not the unpaid one, not the date the money went quiet. The first. A supplier who dropped one pallet in March and came back in July has a July problem that started in March.

The other end of the window is the notice of commencement itself. The statute says you may serve at any time after the recording of the notice of commencement or amended notice, so there is nothing to serve before the owner records, and division (H) says that if the owner, part owner, or lessee who contracted for the work fails to record one at all, no notice of furnishing is required to preserve your lien rights.

Division (D)(2) is the reward for being on time. A notice served inside the period preserves lien rights for amounts owing from the date labor or work was first performed or materials were first furnished, through the date of service and thereafter. Everything. Division (D)(1) is what is left if you are late, and it is a rolling twenty-one day window rather than a locked door.

Serving once is enough even if the paperwork underneath you changes. A subcontractor or material supplier who serves in conformity with the section does not have to serve an amended notice of furnishing if an amended notice of commencement arrives afterward, and a notice built off the information in a notice of commencement is deemed effective even if that notice has already been amended or is amended in the future.

Two extensions the owner hands you by doing nothing

Section 1311.04(I) covers the owner who never records. If the owner, part owner, lessee, or designee fails to record the notice of commencement in accordance with that section, the time within which you may serve a notice of furnishing is extended until twenty-one days after the notice of commencement has been recorded, and you need not serve one to preserve lien rights for the period before it is recorded.

Section 1311.04(J) covers the owner who records but will not hand it over. If the owner, part owner, lessee, or designee fails to serve the notice of commencement on written request, your twenty-one days run from twenty-one days after it actually has been served on you, and the owner who failed is liable to any subcontractor or material supplier who becomes a lien claimant for all actual expenses incurred in obtaining the information that would have been in the notice.

That written request is the move most subs never make. Section 1311.04(H) only makes the owner serve a copy of the notice of commencement on the original contractor, so a sub two rungs down is not on anybody's list. Put the request in writing at the start of the job, keep the copy, and either you get the document you need to fill this form in or you get an extension and a bill the owner has to pay.

Division (I) of 1311.05 closes one more loop. If a notice of commencement is filed as provided in division (O) of section 1311.04, which is the case where a lending institution requires one recorded as part of the financing for a home construction contract, subcontractors and material suppliers on that improvement are not required to serve notices of furnishing at all.

Houses are carved out of this section entirely

Division (E) is four lines and it decides whether the rest of the page applies to you: this section does not apply to any improvement made pursuant to a home construction contract as defined in section 1311.011 of the Revised Code.

That definition is wide. Section 1311.011(A)(1) reaches a contract between an original contractor and an owner, part owner, or lessee for the improvement of any single- or double-family dwelling or a portion of one, or a residential unit of condominium property submitted to Chapter 5311, plus driveways, sidewalks, swimming pools, porches, garages, carports, landscaping, fences, fallout shelters, siding, roofing, storm windows and awnings adjacent to such a dwelling, if the dwelling, unit, or land is used or is intended to be used as a personal residence by the owner, part owner, or lessee.

So a reroof on somebody's own house is a home construction contract and needs no notice of furnishing. A reroof on a rental block the owner does not live in, or on an office, a restaurant, a warehouse or a retail fit-out, is not, and if a notice of commencement was recorded the form on this page is what preserves your lien.

Do not read the carve-out as protection. Section 1311.011(B)(1) is the other half of the bargain: on a home construction contract, no subcontractor, material supplier, or laborer has a lien at all once the owner has paid the original contractor in full, if that payment was made before the owner received a copy of the lien affidavit. Residential work in Ohio trades one piece of paperwork for a much harder rule about getting paid.

Certified mail is served the day you mail it

Section 1311.19(B) writes one exception into the chapter and this form is the reason it exists. Service is complete upon receipt by the party being served, except that for the purposes of sections 1311.05 and 1311.261, if service of a notice of furnishing is made by certified mail, service is complete on the date of the mailing.

Read that against a twenty-one day deadline and it settles the method. Certified mail on day twenty-one is served on day twenty-one, whatever the postal service does next. Hand delivery, overnight service, or any other method which includes a written evidence of receipt is complete on receipt, so a courier that arrives on day twenty-three was mailed in time and served too late.

The same subsection covers the designee who will not take the envelope. If service is attempted upon an owner, part owner, lessee, or designee at the address contained in the notice of commencement, and the document is returned unclaimed or refused, service is complete when first attempted. That is the reason to copy the address off the recorded notice exactly as it appears there rather than off an invoice or a website.

Division (C) adds a floor under everything. A document is considered served, whatever method was used, on the date it is received, if the person served acknowledges receipt or it can be proved by a preponderance of evidence that the person actually received it, and it is presumed received three days after mailing unless there is proof to the contrary.

What the form asks you for

Two addressees, one sentence of facts, and a signature block. The first To line is the owner, part owner, or lessee or designee from the notice of commencement, with the address from that same notice on the rule under it. The second To line is the original contractor from the notice of commencement, with the original contractor's address under it. Copy all four off the recorded document, not off your own records.

One note about that fourth rule. Both current publishers of ORC 1311.05 print the caption for the address of the original contractor with nothing above it to write on, and the codification in print before the 2007 amendment does print the blank. A caption over nothing is not a form, so the rule is restored here. Every other word on the page is the statute's own.

The body sentence carries the three answers that decide anything: the name and address of the other contracting party, which is whoever you actually signed with and on a supplier's notice is the subcontractor rather than the original contractor named above it; the location of the real property, which division (C) says is sufficient if it reasonably identifies the property; and the date labor, work, or materials were first performed or furnished, which is the date the twenty-one days run from.

Underneath the warning to the owner, which is printed in capitals because the statute prints it in capitals, comes the name and address of the lien claimant, then By and the name and capacity of the party signing for the lien claimant, then the address of the party signing, then the date. The statute asks for the signer's address separately from the claimant's, so both are on the form. A notice of furnishing is not notarized and is not recorded.

What comes after it, and when

The notice of furnishing preserves the right to a lien. It is not the lien. The lien is the affidavit in section 1311.06, made and filed for record with the county recorder in the county where the improved property is located, showing the amount due over and above all legal setoffs, a description of the property, the names and addresses, and the first and last dates you worked or furnished.

Division (B) of that section sets three deadlines off the last day of labor, work, or material: sixty days in connection with a one- or two-family dwelling or a residential unit of condominium property as defined in Chapter 5311, one hundred twenty days if the lien arises under section 1311.021, and seventy-five days for everything else.

Those are much shorter than the notice deadline is long, and they run off the end of your work rather than the start, so the job to watch is the one that is nearly finished and still unpaid. The affidavit may be verified before any person authorized to administer oaths, and if it is recorded, the omission or inaccuracy of any address in it does not affect its validity.

One thing this form is not. Division (F) says a notice of furnishing, even if served on a mortgagee of the property to be improved, does not constitute a written notice of a lien or encumbrance under section 5301.232 or a written notice of a claim of a right to a mechanics' lien under division (B)(5) of section 1311.011. It does not cloud title, and nobody can treat it as though it did.

Questions people ask

Once the job is running and you are getting paid on it, the paperwork that comes next is the waiver: see the Ohio statutory lien waiver forms, and conditional vs unconditional lien waiver for which of the two to sign.