REPRESENTATIVE Seitz

To amend sections 1311.01, 1311.04, 1311.19, and

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1311.25 of the Revised Code to expand the time

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within which lien rights of subcontractors and

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materials suppliers are preserved under the

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Mechanic's Lien Law when a timely notice of

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commencement is not filed by the owner of an

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improvement, and to establish new criteria for

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determining whether a notice, affidavit, or other

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document has been served as required under that

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law.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 1311.01, 1311.04, 1311.19, and	11
1311.25 of the Revised Code be amended to read as follows:	12

Sec. 1311.01.  As used in sections 1311.01 to 1311.22 of the	13
Revised Code:	14

(A) "Owner," "part owner," or "lessee" includes all the	15
interests either legal or equitable, which such person may have in	16
the real estate upon which the improvements are made, including	17
the interests held by any person under contracts of purchase,	18
whether in writing or otherwise.	19

(B) "Materialman" or "material supplier" includes any person	20
by whom any materials are furnished in furtherance of an	21
improvement.	22

(C) "Laborer" includes any mechanic, workmanworker,	23
artisan, or other individual who performs labor or work in	24
furtherance of any improvement.	25

(D) "Subcontractor" includes any person who undertakes to	26
construct, alter, erect, improve, repair, demolish, remove, dig,	27
or drill any part of any improvement under a contract with any	28
person other than the owner, part owner, or lessee.	29

(E) "Original contractor," except as otherwise provided in	30
section 1311.011 of the Revised Code, includes a construction	31
manager and any person who undertakes to construct, alter, erect,	32
improve, repair, demolish, remove, dig, or drill any part of any	33
improvement under a contract with an owner, part owner, or lessee.	34

(F) "Construction manager" means a person with substantial	35
discretion and authority to manage or direct an improvement,	36
provided that the person is in direct privity of contract with the	37
owner, part owner, or lessee of the improvement.	38

(G) "Notice of commencement" means the notice specified in	39
section 1311.04 of the Revised Code.	40

(H) "Notice of furnishing" means the notice specified in	41
section 1311.05 of the Revised Code.	42

(I) "Materials" means all products and substances including,	43
without limitation, any gasoline, lubricating oil, petroleum	44
products, powder, dynamite, blasting supplies and other	45
explosives, tools, equipment, or machinery furnished in	46
furtherance of an improvement.	47

(J) "Improvement" means constructing, erecting, altering,	48
repairing, demolishing, or removing any building or appurtenance	49
thereto, fixture, bridge, or other structure, and any gas pipeline	50
or well including, but not limited to, a well drilled or	51
constructed for the production of oil or gas; the furnishing of	52
tile for the drainage of any lot or land; the enhancement or	53
embellishment of real property by seeding, sodding, or the	54
planting thereon of any shrubs, trees, plants, vines, small	55
fruits, flowers, or nursery stock of any kind; and the grading or	56
filling to establish a grade.	57

(K) "Wages" means the basic hourly rate of pay and all other	58
contractually owed benefits.	59

Sec. 1311.04.  (A)(1) Prior to the performance of any labor	60
or work or the furnishing of any materials for an improvement on	61
real property which may give rise to a mechanics' lien under	62
sections 1311.01 to 1311.22 of the Revised Code, the owner, part	63
owner, or lessee who contracts for the labor, work, or materials	64
shall record in the office of the county recorder for each county	65
in which the real property to be improved is located a notice of	66
commencement in substantially the form specified in division (B)	67
of this section.	68

(2) Only one notice of commencement is required to be filed	69
for a single improvement and if more than one notice of	70
commencement is filed for a single improvement, all notices filed	71
after the original notice shall be deemed to be amendments to the	72
original notice. If an owner, part owner, or lessee contracts	73
with additional original contractors, lenders, or sureties not	74
identified in the original notice of commencement filed for the	75
improvement, the owner, part owner, or lessee shall amend the	76
original notice of commencement to identify the additional	77
original contractors, lenders, and sureties. The date of the	78
filing of the amended notice is the date of the filing of the	79
original notice of commencement.	80

(B) The notice of commencement required under division (A)	81
of this section shall contain, in affidavit form, all of the	82
following information:	83

(1) The legal description of the real property on which the	84
improvement is to be made. For purposes of this division, a	85
description sufficient to describe the real property for the	86
purpose of conveyance, or contained in the instrument by which the	87
owner, part owner, or lessee took title, is a legal description.	88

(2) A brief description of the improvement to be performed	89
on the property containing sufficient specificity to permit lien	90
claimants to identify the improvement;	91

(3) The name, address, and capacity of the owner, part	92
owner, or lessee of the real property contracting for the	93
improvement;	94

(4) The name and address of the fee owner of the real	95
property, if the person contracting for the improvement is a land	96
contract vendee or lessee;	97

(5) The name and address of the owner's, part owner's, or	98
lessee's designee, if any;	99

(6) The name and address of all original contractors, except	100
that if the notice of commencement is recorded for an improvement	101
involving a single- or double-family dwelling and if more than one	102
original contractor is involved, instead of listing each original	103
contractor, the owner shall state that multiple original	104
contractors are involved in the improvement;	105

(7) The date the owner, part owner, or lessee first executed	106
a contract with an original contractor for the improvement;	107

(8) The name and address of all lending institutions which	108
provide financing for the improvements, if any;	109

(9) The name and address of all sureties on any bond which	110
guarantee payment of the original contractor's obligations under	111
the contract for the improvement, if any;	112

(10) The following statement:

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"To Lien Claimants and Subsequent Purchasers:

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Take notice that labor or work is about to begin on or	115
materials are about to be furnished for an improvement to the real	116
property described in this instrument. A person having a	117
mechanics' lien may preserve the lien by providing a notice of	118
furnishing to the above-named designee and histhe above-named	119
designee's original contractor, if any, and by timely recording an	120
affidavit pursuant to section 1311.06 of the Revised Code.	121

A copy of this notice may be obtained upon making a written	122
request by certified mail to the above-named owner, part owner,	123
lessee, designee, or the person with whom you have contracted."	124

(11) The name and address of the person preparing the	125
notice;	126

(12) An affidavit of the owner, part owner, or lessee or the	127
agent of the owner, part owner, or lessee which verifies the	128
notice.	129

(C) If the notice of commencement furnished by or for an	130
owner, part owner, or lessee contains incorrect information, the	131
owner, part owner, or lessee is liable for any loss of lien rights	132
of a lien claimant and any actual expenses incurred by the lien	133
claimant in maintaining lien rights, including attorney's fees, if	134
the loss and expenses incurred are a direct result of the lien	135
claimant's reliance on the incorrect information.	136

Any lien claimant who has included incorrect information in	137
histhe claimant's affidavit for a lien under section 1311.06 of	138
the Revised Code, as a result of incorrect information contained	139
in the notice of commencement, may file for record an amended	140
affidavit for a lien. The amended affidavit shall contain all of	141
the information required by section 1311.06 of the Revised Code	142
for an original affidavit. The lien claimant shall serve a copy	143
of the amended affidavit on the owner, part owner, or lessee as	144
provided in section 1311.07 of the Revised Code. The lien	145
claimant may file the amended affidavit for record at any time	146
during the time that the lien acquired by the original affidavit	147
continues in effect under section 1311.13 of the Revised Code. In	148
no event shall the amended affidavit extend such time period. The	149
filing of an amended affidavit does not constitute a waiver of the	150
rights granted by this division.	151

(D) Within ten days after the date a subcontractor,	152
materialmanmaterial supplier, or laborer serves a written request	153
upon the owner, part owner, or lessee, or designee for a copy of	154
the notice of commencement, the owner, part owner, lessee, or	155
designee shall serve a copy of the notice of commencement to the	156
requesting subcontractor, materialmanmaterial supplier, or	157
laborer.	158

(E) Within ten days after the date a subcontractor,	159
materialmanmaterial supplier, or laborer serves a written request	160
for a copy of the notice of commencement upon the original	161
contractor who has been provided with a notice of commencement	162
from the owner, part owner, or lessee, or designee and with whom	163
the subcontractor, materialmanmaterial supplier, or laborer has a	164
direct contract, the original contractor shall serve a copy of the	165
notice of commencement to the requesting subcontractor,	166
materialmanmaterial supplier, or laborer.	167

(F) Within ten days after the date a subcontractor,	168
materialmanmaterial supplier, or laborer serves a written request	169
for a copy of the notice of commencement upon the subcontractor	170
who has been provided with a notice of commencement from the	171
owner, part owner, lessee, designee, or original contractor and	172
with whom the subcontractor, materialmanmaterial supplier, or	173
laborer has a direct contract, the subcontractor shall serve a	174
copy of the notice of commencement upon the requesting	175
subcontractor, materialmanmaterial supplier, or laborer.	176

(G)(1) Except as provided in division (G)(2) of this	177
section, the owner, part owner, lessee, or designee shall post and	178
maintain posted a copy of the notice of commencement in a	179
conspicuous place on the real property described in the notice	180
during the course of the actual physical improvement to the real	181
property.	182

(2) No owner, part owner, lessee, or designee, has to post a	183
copy of the notice of commencement on the real property described	184
in the notice for an improvement that is the subject of a home	185
purchase contract.	186

(H) The owner, part owner, lessee, or designee shall serve a	187
copy of the notice of commencement upon the original contractor.	188
If the owner, part owner, lessee, or designee fails to serve a	189
copy of the notice of commencement upon the original contractor,	190
the owner, part owner, or lessee is liable to the original	191
contractor for all actual expenses incurred by the original	192
contractor in obtaining the information otherwise provided by the	193
notice of commencement.	194

(I) If the owner, part owner, lessee, or designee fails to	195
record the notice of commencement in accordance with this section,	196
the time within which a subcontractor or materialmanmaterial	197
supplier may serve a notice of furnishing as required by section	198
1311.05 of the Revised Code is extended until twenty-one days	199
after the notice of commencement has been recorded. A	200
subcontractor or material supplier need not serve a notice of	201
furnishing to preserve lien rights for the period before the	202
notice of commencement is recorded.	203

(J) If the owner, part owner, lessee, or designee fails to	204
serve, upon written request, the notice of commencement in	205
accordance with this section, the time within which a	206
subcontractor or materialmanmaterial supplier may serve a notice	207
of furnishing as required by section 1311.05 of the Revised Code	208
is extended until twenty-one days after the notice of commencement	209
actually has been served to the subcontractor or materialman	210
material supplier. The owner, part owner, or lessee who fails to	211
serve the notice pursuant to this section is liable to any	212
subcontractor or materialmanmaterial supplier who becomes a lien	213
claimant for all actual expenses incurred by the lien claimant in	214
obtaining the information that would have been contained in the	215
notice.	216

(K) If an owner, part owner, lessee, or designee fails to	217
post or maintain a copy of the notice of commencement as required	218
by division (G)(1) of this section, the owner, part owner, or	219
lessee is liable to a subcontractor, materialmanmaterial	220
supplier, or laborer who becomes a lien claimant for all actual	221
expenses incurred by the lien claimant in obtaining the	222
information otherwise provided by the posting.	223

(L) If an original contractor or subcontractor who has been	224
provided with a notice of commencement fails to serve a copy of	225
the notice of commencement to any subcontractor, materialman	226
material supplier, or laborer who requests it, the original	227
contractor or subcontractor who fails to serve the copy of the	228
notice is liable to the subcontractor, materialmanmaterial	229
supplier, or laborer who made the request for all costs incurred	230
by the subcontractor, materialmanmaterial supplier, or laborer in	231
obtaining the information contained in the notice of commencement,	232
provided that an original contractor or subcontractor who fails to	233
provide the notice upon request is not liable under this division	234
to any subcontractor, materialmanmaterial supplier, or laborer	235
with whom hethe original contractor or subcontractor is not in	236
direct privity of contract.	237

(M)(1) If after the first work, labor, or material has been	238
performed on or furnished to the improvement, the owner, part	239
owner, lessee, or designee fails to serve, record, or post a	240
notice of commencement as required by this section, the original	241
contractor may, in writing, request the owner, part owner, lessee,	242
or designee to serve, record, or post the notice. If an owner,	243
part owner, lessee, or histhe designee of an owner, part owner,	244
or lessee fails or refuses to serve, record, or post a notice of	245
commencement within ten days of receipt of a request, the owner,	246
part owner, or lessee is liable for histhe owner's, part owner's,	247
or lessee's failure or refusal and for the designee's failure or	248
refusal, without recourse to the original contractor for all	249
damages, costs, and expenses which result from the filing of a	250
valid mechanics' lien to the extent that the lien, damages, costs,	251
and expenses could have been avoided through proper payment.	252

(2) Nothing in this division shall be interpreted as to	253
either of the following:	254

(a) Relieving an original contractor from histhe duty to	255
pay histhe original contractor's subcontractors, materialmen	256
material suppliers, and laborers for labor or work performed or	257
materials furnished pursuant to a contract directly with the	258
original contractor;	259

(b) Obligating an owner, part owner, or lessee to pay for	260
work or labor performed or materials furnished by subcontractors,	261
materialmenmaterial suppliers, or laborers pursuant to direct	262
contracts with the original contractor.	263

(N)(1) If the owner, part owner, or lessee fails to record a	264
notice of commencement or an amended notice, any person holding a	265
mortgage on the real property to be improved may record a notice	266
of commencement or an amended notice on behalf of the owner, part	267
owner, or lessee. If the owner, part owner, or lessee fails to	268
record a notice of commencement or an amended notice within the	269
later of ten days after the performance of any labor or work or	270
the furnishing of any material for an improvement on real property	271
which gives rise to a mechanics' lien under sections 1311.01 to	272
1311.22 of the Revised Code or three days after service of a	273
demand to record the notice or amended notice by the original	274
contractor, the original contractor may record a notice of	275
commencement or an amended notice on behalf of the owner, part	276
owner, or lessee.	277

(2) If the original contractor or a mortgage holder has	278
recorded a notice of commencement or an amended notice on behalf	279
of the owner, part owner, or lessee, the owner, part owner, or	280
lessee is liable to the original contractor or mortgage holder for	281
all costs and expenses incurred in obtaining the information	282
contained in the notice of commencement or an amended notice and	283
all costs incurred in the preparation and recording of the notice	284
of commencement or an amended notice.	285

(3) Unless required to file the notice of commencement or an	286
amended notice on behalf of the owner, part owner, or lessee, the	287
party filing a written notice of commencement or amended notice on	288
behalf of the owner, part owner, or lessee is not liable to the	289
owner, part owner, or lessee for any errors contained in the	290
notice of commencement or amended notice.	291

(4) If a mortgage holder or an original contractor records a	292
notice of commencement or amended notice on behalf of an owner,	293
part owner, or lessee, such fact must be included on the notice or	294
amended notice.	295

(O) This section does not apply to any improvement made	296
pursuant to a home construction contract as defined in section	297
1311.011 of the Revised Code.	298

(P) The county recorder of the county where a notice of	299
commencement is filed for record shall endorse the date and hour	300
of its filing and cause it to be recorded as mechanics' liens are	301
recorded, and collect the same fees for recording the notice of	302
commencement as are provided in section 317.32 of the Revised	303
Code. The recorder shall index the real property described in the	304
notice of commencement and shall index the names of all owners,	305
part owners, lessees, and land contract vendees in the direct	306
index and the names of all original contractors in the reverse	307
index as provided for in section 317.18 of the Revised Code.	308

(Q) Notwithstanding this section, if the owner, part owner,	309
or lessee is a telephone company, an electric light company, a gas	310
company, a water works company, all as defined in section 4905.03	311
of the Revised Code, or a subsidiary or affiliate thereof, the	312
owner, part owner, or lessee may, but is not required to, record a	313
notice of commencement pursuant to division (A) of this section,	314
and is not required to serve, post, and provide copies of a notice	315
of commencement pursuant to divisions (D), (G), and (H) of this	316
section unless such owner, part owner, or lessee elects to record	317
the notice of commencement. If the owner, part owner, or lessee	318
elects to record the notice of commencement and the improvement	319
extends beyond one parcel of real property or one county, the	320
owner, part owner, or lessee may, in lieu of using the legal	321
description required in division (B)(1) of this section, use a	322
description which reasonably describes the real property on which	323
the improvement is to be made. Any description used other than	324
the description specified in division (B)(1) of this section shall	325
refer to the township and county in which the improvement is	326
located, the name and route number of any local, state, or federal	327
highway near the improvement, if any, the post office address of	328
the real property, if any, and the name by which the owner, part	329
owner, or lessee refers to the improvement.	330

If an owner, part owner, or lessee elects not to record,	331
serve, post, or provide copies of a notice of commencement	332
pursuant to divisions (A), (D), (G)(1), and (H) of this section,	333
hethe owner, part owner, or lessee is subject to all applicable	334
liabilities pursuant to divisions (C), (H), (J), (K), (M), and (N)	335
of this section.	336

(R) If an owner, part owner, lessee, or designee fails to	337
record a notice of commencement in accordance with this section,	338
no subcontractor or materialmanmaterial supplier who performs	339
labor or work upon or furnishes material in furtherance of that	340
improvement has to serve a notice of furnishing in accordance with	341
section 1311.05 of the Revised Code in order to preserve histhe	342
subcontractor's or material supplier's lien rights.	343

Sec. 1311.19.  (A) Except as otherwise provided in section	344
1311.11 of the Revised Code and division (C) of this section, any	345
notice, affidavit, or other document required to be served under	346
this chapter shall be served by one of the following means:	347

(1) The sheriff of the county in which the person to be	348
served resides or maintains histhe person's principal place of	349
business, in one or more of the methods provided in the Ohio Rules	350
of Civil Procedure. The sheriff may charge reasonable fees for	351
such service.	352

(2) Certified or registered mail, overnight delivery	353
service, hand delivery, or any other method which includes a	354
written evidence of receipt;	355

(3) The means provided in division (H) of section 1701.07 of	356
the Revised Code, if the person is a corporation.	357

(B) For purposes of this chapter, service is complete upon	358
receipt by the party being served except as provided in division	359
(H) of section 1701.07 of the Revised Code and except, for the	360
purposes of sections 1311.05 and 1311.261 of the Revised Code, if	361
service of a notice of furnishing is made by certified mail,	362
service is complete on the date of the mailing. If the service is	363
attempted upon an owner, part owner, or lessee, or designee, at	364
the address contained in the notice of commencement required by	365
section 1311.04 of the Revised Code, and if the notice, affidavit,	366
or other document is returned unclaimed or refused, service is	367
complete when first attempted.	368

(C) A notice, affidavit, or other document required to be	369
served under this chapter is considered served, whether or not the	370
notice, affidavit, or other document was served by the means	371
described in divisions (A)(1) to (3) of this section, and service	372
is complete on the date the notice, affidavit, or other document	373
is received, if either of the following is true regarding the	374
notice, affidavit, or other document:	375

(1) The person served acknowledges receipt of the notice,	376
affidavit, or other document.	377

(2) It can be proved by a preponderance of evidence that the	378
person being served actually received the notice, affidavit, or	379
other document.	380

A notice, affidavit, or other document to which this division	381
applies is presumed to have been received three days after the	382
date of the mailing of the notice, affidavit, or other document,	383
unless a written acknowledgement, receipt, or other evidence	384
provides proof to the contrary.	385

Sec. 1311.25.  As used in sections 1311.25 to 1311.32 of the	386
Revised Code:	387

(A) "Public improvement" means any construction,	388
reconstruction, improvement, enlargement, alteration, demolition,	389
or repair of a building, highway, drainage system, water system,	390
road, street, alley, sewer, ditch, sewage disposal plant, water	391
works, and any other structure or work of any nature by a public	392
authority.	393

(B) "Public authority" includes the state, and a county,	394
township, municipal corporation, school district, or other	395
political subdivision of the state, and any public agency,	396
authority, board, commission, instrumentality, or special district	397
of or in the state or a county, township, municipal corporation,	398
school district, or other political subdivision of the state, and	399
any officer or agent thereof.	400

(C) "Materialman" or "material supplier" includes any person	401
by whom any materials are furnished in furtherance of a public	402
improvement.	403

(D) "Laborer" includes any mechanic, workmanworker,	404
artisan, or other individual who performs labor or work in	405
furtherance of any public improvement.	406

(E) "Subcontractor" includes any person who undertakes to	407
construct, alter, erect, improve, repair, demolish, remove, dig,	408
or drill any part of any public improvement under a contract with	409
any person other than the public authority.	410

(F) "Principal contractor" includes any person who	411
undertakes to construct, alter, erect, improve, repair, demolish,	412
remove, dig, or drill any part of any public improvement under a	413
contract with a public authority.	414

(G) "Materials" means all products and substances including,	415
without limitation, any gasoline, lubricating oil, petroleum	416
products, powder, dynamite, blasting supplies and other	417
explosives, tools, equipment, or machinery furnished in	418
furtherance of a public improvement.	419

(H) "Wages" has the same meaning as "prevailing wage" in	420
division (E) of section 4115.03 of the Revised Code.	421

(I) "Notice of commencement" means the notice specified in	422
section 1311.252 of the Revised Code.	423

(J) "Notice of furnishing" means the notice specified in	424
section 1311.261 of the Revised Code.	425

Section 2. That existing sections 1311.01, 1311.04, 1311.19,	426
and 1311.25 of the Revised Code are hereby repealed.	427