REPRESENTATIVES Seitz, Willamowski, Manning, Grendell, Schmidt, Schneider, Clancy, Niehaus, Lendrum, Salerno, Womer Benjamin, Distel, Setzer, Britton, Roman, Allen, Stapleton, Hagan, Kearns, Hoops, Husted, Buehrer, G. Smith, Flowers, Collier, Faber, Calvert, Williams, Barrett, Schaffer, Gilb

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

3

materials suppliers are preserved under the

4

Mechanic's Lien Law when a timely notice of

5

commencement is not filed by the owner of an

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improvement; 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; and to specify that the excavation, cleanup,

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or removal of hazardous material from realy

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property is an improvement for purposes of the

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Mechanic's Lien 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	14
1311.25 of the Revised Code be amended to read as follows:	15

Sec. 1311.01.  As used in sections 1311.01 to 1311.22 of the	16
Revised Code:	17

(A) "Owner," "part owner," or "lessee" includes all the	18
interests either legal or equitable, which such person may have in	19
the real estate upon which the improvements are made, including	20
the interests held by any person under contracts of purchase,	21
whether in writing or otherwise.	22

(B) "Materialman" or "material supplier" includes any person	23
by whom any materials are furnished in furtherance of an	24
improvement.	25

(C) "Laborer" includes any mechanic, workmanworker,	26
artisan, or other individual who performs labor or work in	27
furtherance of any improvement.	28

(D) "Subcontractor" includes any person who undertakes to	29
construct, alter, erect, improve, repair, demolish, remove, dig,	30
or drill any part of any improvement under a contract with any	31
person other than the owner, part owner, or lessee.	32

(E) "Original contractor," except as otherwise provided in	33
section 1311.011 of the Revised Code, includes a construction	34
manager and any person who undertakes to construct, alter, erect,	35
improve, repair, demolish, remove, dig, or drill any part of any	36
improvement under a contract with an owner, part owner, or lessee.	37

(F) "Construction manager" means a person with substantial	38
discretion and authority to manage or direct an improvement,	39
provided that the person is in direct privity of contract with the	40
owner, part owner, or lessee of the improvement.	41

(G) "Notice of commencement" means the notice specified in	42
section 1311.04 of the Revised Code.	43

(H) "Notice of furnishing" means the notice specified in	44
section 1311.05 of the Revised Code.	45

(I) "Materials" means all products and substances including,	46
without limitation, any gasoline, lubricating oil, petroleum	47
products, powder, dynamite, blasting supplies and other	48
explosives, tools, equipment, or machinery furnished in	49
furtherance of an improvement.	50

(J) "Improvement" means constructing, erecting, altering,	51
repairing, demolishing, or removing any building or appurtenance	52
thereto, fixture, bridge, or other structure, and any gas pipeline	53
or well including, but not limited to, a well drilled or	54
constructed for the production of oil or gas; the furnishing of	55
tile for the drainage of any lot or land; the excavation, cleanup,	56
or removal of hazardous material or waste from real property; the	57
enhancement or embellishment of real property by seeding, sodding,	58
or the planting thereon of any shrubs, trees, plants, vines, small	59
fruits, flowers, or nursery stock of any kind; and the grading or	60
filling to establish a grade.	61

(K) "Wages" means the basic hourly rate of pay and all other	62
contractually owed benefits.	63

Sec. 1311.04.  (A)(1) Prior to the performance of any labor	64
or work or the furnishing of any materials for an improvement on	65
real property which may give rise to a mechanics' lien under	66
sections 1311.01 to 1311.22 of the Revised Code, the owner, part	67
owner, or lessee who contracts for the labor, work, or materials	68
shall record in the office of the county recorder for each county	69
in which the real property to be improved is located a notice of	70
commencement in substantially the form specified in division (B)	71
of this section.	72

(2) Only one notice of commencement is required to be filed	73
for a single improvement and if more than one notice of	74
commencement is filed for a single improvement, all notices filed	75
after the original notice shall be deemed to be amendments to the	76
original notice. If an owner, part owner, or lessee contracts	77
with additional original contractors, lenders, or sureties not	78
identified in the original notice of commencement filed for the	79
improvement, the owner, part owner, or lessee shall amend the	80
original notice of commencement to identify the additional	81
original contractors, lenders, and sureties. The date of the	82
filing of the amended notice is the date of the filing of the	83
original notice of commencement.	84

(B) The notice of commencement required under division (A)	85
of this section shall contain, in affidavit form, all of the	86
following information:	87

(1) The legal description of the real property on which the	88
improvement is to be made. For purposes of this division, a	89
description sufficient to describe the real property for the	90
purpose of conveyance, or contained in the instrument by which the	91
owner, part owner, or lessee took title, is a legal description.	92

(2) A brief description of the improvement to be performed	93
on the property containing sufficient specificity to permit lien	94
claimants to identify the improvement;	95

(3) The name, address, and capacity of the owner, part	96
owner, or lessee of the real property contracting for the	97
improvement;	98

(4) The name and address of the fee owner of the real	99
property, if the person contracting for the improvement is a land	100
contract vendee or lessee;	101

(5) The name and address of the owner's, part owner's, or	102
lessee's designee, if any;	103

(6) The name and address of all original contractors, except	104
that if the notice of commencement is recorded for an improvement	105
involving a single- or double-family dwelling and if more than one	106
original contractor is involved, instead of listing each original	107
contractor, the owner shall state that multiple original	108
contractors are involved in the improvement;	109

(7) The date the owner, part owner, or lessee first executed	110
a contract with an original contractor for the improvement;	111

(8) The name and address of all lending institutions which	112
provide financing for the improvements, if any;	113

(9) The name and address of all sureties on any bond which	114
guarantee payment of the original contractor's obligations under	115
the contract for the improvement, if any;	116

(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	119
materials are about to be furnished for an improvement to the real	120
property described in this instrument. A person having a	121
mechanics' lien may preserve the lien by providing a notice of	122
furnishing to the above-named designee and histhe above-named	123
designee's original contractor, if any, and by timely recording an	124
affidavit pursuant to section 1311.06 of the Revised Code.	125

A copy of this notice may be obtained upon making a written	126
request by certified mail to the above-named owner, part owner,	127
lessee, designee, or the person with whom you have contracted."	128

(11) The name and address of the person preparing the	129
notice;	130

(12) An affidavit of the owner, part owner, or lessee or the	131
agent of the owner, part owner, or lessee which verifies the	132
notice.	133

(C) If the notice of commencement furnished by or for an	134
owner, part owner, or lessee contains incorrect information, the	135
owner, part owner, or lessee is liable for any loss of lien rights	136
of a lien claimant and any actual expenses incurred by the lien	137
claimant in maintaining lien rights, including attorney's fees, if	138
the loss and expenses incurred are a direct result of the lien	139
claimant's reliance on the incorrect information.	140

Any lien claimant who has included incorrect information in	141
histhe claimant's affidavit for a lien under section 1311.06 of	142
the Revised Code, as a result of incorrect information contained	143
in the notice of commencement, may file for record an amended	144
affidavit for a lien. The amended affidavit shall contain all of	145
the information required by section 1311.06 of the Revised Code	146
for an original affidavit. The lien claimant shall serve a copy	147
of the amended affidavit on the owner, part owner, or lessee as	148
provided in section 1311.07 of the Revised Code. The lien	149
claimant may file the amended affidavit for record at any time	150
during the time that the lien acquired by the original affidavit	151
continues in effect under section 1311.13 of the Revised Code. In	152
no event shall the amended affidavit extend such time period. The	153
filing of an amended affidavit does not constitute a waiver of the	154
rights granted by this division.	155

(D) Within ten days after the date a subcontractor,	156
materialmanmaterial supplier, or laborer serves a written request	157
upon the owner, part owner, or lessee, or designee for a copy of	158
the notice of commencement, the owner, part owner, lessee, or	159
designee shall serve a copy of the notice of commencement to the	160
requesting subcontractor, materialmanmaterial supplier, or	161
laborer.	162

(E) Within ten days after the date a subcontractor,	163
materialmanmaterial supplier, or laborer serves a written request	164
for a copy of the notice of commencement upon the original	165
contractor who has been provided with a notice of commencement	166
from the owner, part owner, or lessee, or designee and with whom	167
the subcontractor, materialmanmaterial supplier, or laborer has a	168
direct contract, the original contractor shall serve a copy of the	169
notice of commencement to the requesting subcontractor,	170
materialmanmaterial supplier, or laborer.	171

(F) Within ten days after the date a subcontractor,	172
materialmanmaterial supplier, or laborer serves a written request	173
for a copy of the notice of commencement upon the subcontractor	174
who has been provided with a notice of commencement from the	175
owner, part owner, lessee, designee, or original contractor and	176
with whom the subcontractor, materialmanmaterial supplier, or	177
laborer has a direct contract, the subcontractor shall serve a	178
copy of the notice of commencement upon the requesting	179
subcontractor, materialmanmaterial supplier, or laborer.	180

(G)(1) Except as provided in division (G)(2) of this	181
section, the owner, part owner, lessee, or designee shall post and	182
maintain posted a copy of the notice of commencement in a	183
conspicuous place on the real property described in the notice	184
during the course of the actual physical improvement to the real	185
property.	186

(2) No owner, part owner, lessee, or designee, has to post a	187
copy of the notice of commencement on the real property described	188
in the notice for an improvement that is the subject of a home	189
purchase contract.	190

(H) The owner, part owner, lessee, or designee shall serve a	191
copy of the notice of commencement upon the original contractor.	192
If the owner, part owner, lessee, or designee fails to serve a	193
copy of the notice of commencement upon the original contractor,	194
the owner, part owner, or lessee is liable to the original	195
contractor for all actual expenses incurred by the original	196
contractor in obtaining the information otherwise provided by the	197
notice of commencement.	198

(I) If the owner, part owner, lessee, or designee fails to	199
record the notice of commencement in accordance with this section,	200
the time within which a subcontractor or materialmanmaterial	201
supplier may serve a notice of furnishing as required by section	202
1311.05 of the Revised Code is extended until twenty-one days	203
after the notice of commencement has been recorded. A	204
subcontractor or material supplier need not serve a notice of	205
furnishing to preserve lien rights for the period before the	206
notice of commencement is recorded.	207

(J) If the owner, part owner, lessee, or designee fails to	208
serve, upon written request, the notice of commencement in	209
accordance with this section, the time within which a	210
subcontractor or materialmanmaterial supplier may serve a notice	211
of furnishing as required by section 1311.05 of the Revised Code	212
is extended until twenty-one days after the notice of commencement	213
actually has been served to the subcontractor or materialman	214
material supplier. The owner, part owner, or lessee who fails to	215
serve the notice pursuant to this section is liable to any	216
subcontractor or materialmanmaterial supplier who becomes a lien	217
claimant for all actual expenses incurred by the lien claimant in	218
obtaining the information that would have been contained in the	219
notice.	220

(K) If an owner, part owner, lessee, or designee fails to	221
post or maintain a copy of the notice of commencement as required	222
by division (G)(1) of this section, the owner, part owner, or	223
lessee is liable to a subcontractor, materialmanmaterial	224
supplier, or laborer who becomes a lien claimant for all actual	225
expenses incurred by the lien claimant in obtaining the	226
information otherwise provided by the posting.	227

(L) If an original contractor or subcontractor who has been	228
provided with a notice of commencement fails to serve a copy of	229
the notice of commencement to any subcontractor, materialman	230
material supplier, or laborer who requests it, the original	231
contractor or subcontractor who fails to serve the copy of the	232
notice is liable to the subcontractor, materialmanmaterial	233
supplier, or laborer who made the request for all costs incurred	234
by the subcontractor, materialmanmaterial supplier, or laborer in	235
obtaining the information contained in the notice of commencement,	236
provided that an original contractor or subcontractor who fails to	237
provide the notice upon request is not liable under this division	238
to any subcontractor, materialmanmaterial supplier, or laborer	239
with whom hethe original contractor or subcontractor is not in	240
direct privity of contract.	241

(M)(1) If after the first work, labor, or material has been	242
performed on or furnished to the improvement, the owner, part	243
owner, lessee, or designee fails to serve, record, or post a	244
notice of commencement as required by this section, the original	245
contractor may, in writing, request the owner, part owner, lessee,	246
or designee to serve, record, or post the notice. If an owner,	247
part owner, lessee, or histhe designee of an owner, part owner,	248
or lessee fails or refuses to serve, record, or post a notice of	249
commencement within ten days of receipt of a request, the owner,	250
part owner, or lessee is liable for histhe owner's, part owner's,	251
or lessee's failure or refusal and for the designee's failure or	252
refusal, without recourse to the original contractor for all	253
damages, costs, and expenses which result from the filing of a	254
valid mechanics' lien to the extent that the lien, damages, costs,	255
and expenses could have been avoided through proper payment.	256

(2) Nothing in this division shall be interpreted as to	257
either of the following:	258

(a) Relieving an original contractor from histhe duty to	259
pay histhe original contractor's subcontractors, materialmen	260
material suppliers, and laborers for labor or work performed or	261
materials furnished pursuant to a contract directly with the	262
original contractor;	263

(b) Obligating an owner, part owner, or lessee to pay for	264
work or labor performed or materials furnished by subcontractors,	265
materialmenmaterial suppliers, or laborers pursuant to direct	266
contracts with the original contractor.	267

(N)(1) If the owner, part owner, or lessee fails to record a	268
notice of commencement or an amended notice, any person holding a	269
mortgage on the real property to be improved may record a notice	270
of commencement or an amended notice on behalf of the owner, part	271
owner, or lessee. If the owner, part owner, or lessee fails to	272
record a notice of commencement or an amended notice within the	273
later of ten days after the performance of any labor or work or	274
the furnishing of any material for an improvement on real property	275
which gives rise to a mechanics' lien under sections 1311.01 to	276
1311.22 of the Revised Code or three days after service of a	277
demand to record the notice or amended notice by the original	278
contractor, the original contractor may record a notice of	279
commencement or an amended notice on behalf of the owner, part	280
owner, or lessee.	281

(2) If the original contractor or a mortgage holder has	282
recorded a notice of commencement or an amended notice on behalf	283
of the owner, part owner, or lessee, the owner, part owner, or	284
lessee is liable to the original contractor or mortgage holder for	285
all costs and expenses incurred in obtaining the information	286
contained in the notice of commencement or an amended notice and	287
all costs incurred in the preparation and recording of the notice	288
of commencement or an amended notice.	289

(3) Unless required to file the notice of commencement or an	290
amended notice on behalf of the owner, part owner, or lessee, the	291
party filing a written notice of commencement or amended notice on	292
behalf of the owner, part owner, or lessee is not liable to the	293
owner, part owner, or lessee for any errors contained in the	294
notice of commencement or amended notice.	295

(4) If a mortgage holder or an original contractor records a	296
notice of commencement or amended notice on behalf of an owner,	297
part owner, or lessee, such fact must be included on the notice or	298
amended notice.	299

(O) This section does not apply to any improvement made	300
pursuant to a home construction contract as defined in section	301
1311.011 of the Revised Code.	302

(P) The county recorder of the county where a notice of	303
commencement is filed for record shall endorse the date and hour	304
of its filing and cause it to be recorded as mechanics' liens are	305
recorded, and collect the same fees for recording the notice of	306
commencement as are provided in section 317.32 of the Revised	307
Code. The recorder shall index the real property described in the	308
notice of commencement and shall index the names of all owners,	309
part owners, lessees, and land contract vendees in the direct	310
index and the names of all original contractors in the reverse	311
index as provided for in section 317.18 of the Revised Code.	312

(Q) Notwithstanding this section, if the owner, part owner,	313
or lessee is a telephone company, an electric light company, a gas	314
company, a water works company, all as defined in section 4905.03	315
of the Revised Code, or a subsidiary or affiliate thereof, the	316
owner, part owner, or lessee may, but is not required to, record a	317
notice of commencement pursuant to division (A) of this section,	318
and is not required to serve, post, and provide copies of a notice	319
of commencement pursuant to divisions (D), (G), and (H) of this	320
section unless such owner, part owner, or lessee elects to record	321
the notice of commencement. If the owner, part owner, or lessee	322
elects to record the notice of commencement and the improvement	323
extends beyond one parcel of real property or one county, the	324
owner, part owner, or lessee may, in lieu of using the legal	325
description required in division (B)(1) of this section, use a	326
description which reasonably describes the real property on which	327
the improvement is to be made. Any description used other than	328
the description specified in division (B)(1) of this section shall	329
refer to the township and county in which the improvement is	330
located, the name and route number of any local, state, or federal	331
highway near the improvement, if any, the post office address of	332
the real property, if any, and the name by which the owner, part	333
owner, or lessee refers to the improvement.	334

If an owner, part owner, or lessee elects not to record,	335
serve, post, or provide copies of a notice of commencement	336
pursuant to divisions (A), (D), (G)(1), and (H) of this section,	337
hethe owner, part owner, or lessee is subject to all applicable	338
liabilities pursuant to divisions (C), (H), (J), (K), (M), and (N)	339
of this section.	340

(R) If an owner, part owner, lessee, or designee fails to	341
record a notice of commencement in accordance with this section,	342
no subcontractor or materialmanmaterial supplier who performs	343
labor or work upon or furnishes material in furtherance of that	344
improvement has to serve a notice of furnishing in accordance with	345
section 1311.05 of the Revised Code in order to preserve histhe	346
subcontractor's or material supplier's lien rights.	347

Sec. 1311.19.  (A) Except as otherwise provided in section	348
1311.11 of the Revised Code and division (C) of this section, any	349
notice, affidavit, or other document required to be served under	350
this chapter shall be served by one of the following means:	351

(1) The sheriff of the county in which the person to be	352
served resides or maintains histhe person's principal place of	353
business, in one or more of the methods provided in the Ohio Rules	354
of Civil Procedure. The sheriff may charge reasonable fees for	355
such service.	356

(2) Certified or registered mail, overnight delivery	357
service, hand delivery, or any other method which includes a	358
written evidence of receipt;	359

(3) The means provided in division (H) of section 1701.07 of	360
the Revised Code, if the person is a corporation.	361

(B) For purposes of this chapter, service is complete upon	362
receipt by the party being served except as provided in division	363
(H) of section 1701.07 of the Revised Code and except, for the	364
purposes of sections 1311.05 and 1311.261 of the Revised Code, if	365
service of a notice of furnishing is made by certified mail,	366
service is complete on the date of the mailing. If the service is	367
attempted upon an owner, part owner, or lessee, or designee, at	368
the address contained in the notice of commencement required by	369
section 1311.04 of the Revised Code, and if the notice, affidavit,	370
or other document is returned unclaimed or refused, service is	371
complete when first attempted.	372

(C) A notice, affidavit, or other document required to be	373
served under this chapter is considered served, whether or not the	374
notice, affidavit, or other document was served by the means	375
described in divisions (A)(1) to (3) of this section, and service	376
is complete on the date the notice, affidavit, or other document	377
is received, if either of the following is true regarding the	378
notice, affidavit, or other document:	379

(1) The person served acknowledges receipt of the notice,	380
affidavit, or other document.	381

(2) It can be proved by a preponderance of evidence that the	382
person being served actually received the notice, affidavit, or	383
other document.	384

A notice, affidavit, or other document to which this division	385
applies is presumed to have been received three days after the	386
date of the mailing of the notice, affidavit, or other document,	387
unless a written acknowledgement, receipt, or other evidence	388
provides proof to the contrary.	389

Sec. 1311.25.  As used in sections 1311.25 to 1311.32 of the	390
Revised Code:	391

(A) "Public improvement" means any construction,	392
reconstruction, improvement, enlargement, alteration, demolition,	393
or repair of a building, highway, drainage system, water system,	394
road, street, alley, sewer, ditch, sewage disposal plant, water	395
works, and any other structure or work of any nature by a public	396
authority.	397

(B) "Public authority" includes the state, and a county,	398
township, municipal corporation, school district, or other	399
political subdivision of the state, and any public agency,	400
authority, board, commission, instrumentality, or special district	401
of or in the state or a county, township, municipal corporation,	402
school district, or other political subdivision of the state, and	403
any officer or agent thereof.	404

(C) "Materialman" or "material supplier" includes any person	405
by whom any materials are furnished in furtherance of a public	406
improvement.	407

(D) "Laborer" includes any mechanic, workmanworker,	408
artisan, or other individual who performs labor or work in	409
furtherance of any public improvement.	410

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

(F) "Principal contractor" includes any person who	415
undertakes to construct, alter, erect, improve, repair, demolish,	416
remove, dig, or drill any part of any public improvement under a	417
contract with a public authority.	418

(G) "Materials" means all products and substances including,	419
without limitation, any gasoline, lubricating oil, petroleum	420
products, powder, dynamite, blasting supplies and other	421
explosives, tools, equipment, or machinery furnished in	422
furtherance of a public improvement.	423

(H) "Wages" has the same meaning as "prevailing wage" in	424
division (E) of section 4115.03 of the Revised Code.	425

(I) "Notice of commencement" means the notice specified in	426
section 1311.252 of the Revised Code.	427

(J) "Notice of furnishing" means the notice specified in	428
section 1311.261 of the Revised Code.	429

Section 2. That existing sections 1311.01, 1311.04, 1311.19,	430
and 1311.25 of the Revised Code are hereby repealed.	431