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Sub. H. B. No. 487 As Reported by the Senate Insurance, Commerce and Labor Committee
As Reported by the Senate Insurance, Commerce and Labor Committee
126th General Assembly | Regular Session | 2005-2006 |
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Representatives Widener, Martin, McGregor, R., Wagoner, Seitz, Hartnett, Allen, Koziura, Hagan, Gibbs, Evans, C., Bubp, Chandler, Coley, Combs, DeBose, Dolan, Domenick, Flowers, Hughes, Luckie, McGregor, J., Otterman, Schaffer, Schneider, Smith, G., Williams
A BILL
To amend sections 153.54, 153.57, 1311.01, 1311.011, 1311.02, 1311.021, 1311.03, 1311.04, 1311.05, 1311.12, 1311.13, 1311.14, 1311.15, 1311.25, 1311.26, 1311.261, 1311.28, 1311.29, 1311.32, 4113.61, 4740.01, 4740.04, 4740.05, 4740.06, 4740.07, 4740.08, 4740.101, 4740.12, 5309.57, and 5525.16 and to enact section 4740.15 of the Revised Code to specify that an owner, part owner, or lessee of real property, with respect to a home construction contract, must record a notice of commencement only if required by a lending institution, to stipulate that a notice of commencement for a home construction contract expires six years after it is recorded, to permit court costs and reasonable attorney fees to be included in damages an owner may recover from a lienholder who refuses to release the lien after the owner makes full payment and to stipulate for all types of liens that a mortgage is considered filed first if a mortgage and notice of commencement are filed on the same day, to modify procedures and requirements for contractor licensure by the Ohio Construction Industry Licensing Board, to require that any political subdivision, district, or agency of the state that requires contractor registration and fee payment must require licensure in the contractor's trade by the Construction Industry Licensing Board, and to establish a procedure and penalty when checks in payment of fees are returned unpaid to the Construction Industry Licensing Board.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1.
That sections 153.54, 153.57, 1311.01, 1311.011, 1311.02, 1311.021, 1311.03, 1311.04, 1311.05, 1311.12, 1311.13, 1311.14, 1311.15, 1311.25, 1311.26, 1311.261, 1311.28, 1311.29, 1311.32, 4113.61, 4740.01, 4740.04, 4740.05, 4740.06, 4740.07, 4740.08, 4740.101, 4740.12, 5309.57, and 5525.16 be amended and section 4740.15 of the Revised Code be enacted to read as follows:
Sec. 153.54. (A) Each person bidding for a contract with
the state or any political subdivision, district, institution, or
other agency thereof, excluding therefrom the department of
transportation, for any public improvement shall file with the
bid, a bid guaranty in the form of either: (1) A bond in accordance with division (B) of this section
for the full amount of the bid; (2) A certified check, cashier's check, or letter of
credit pursuant to Chapter 1305. of the Revised Code, in
accordance with division (C) of this section. Any such letter of
credit is revocable only at the option of the beneficiary state,
political subdivision, district, institution, or agency. The
amount of the certified check, cashier's check, or letter of
credit shall be equal to ten per cent of the bid. (B) A bid guaranty filed pursuant to division (A)(1) of
this section shall be conditioned to: (1) Provide that, if the bid is accepted, the bidder,
after the awarding or the recommendation for the award of the
contract, whichever the contracting authority designates, will enter
into a proper contract in accordance with the bid, plans,
details, specifications, and bills of material. If for any
reason, other than as authorized by section 9.31 of the Revised
Code or division (G) of this section, the bidder fails to enter
into the contract, and the contracting authority awards the
contract to the next lowest bidder, the bidder and the surety on
the bidder's bond are liable to the state, political
subdivision,
district, institution, or agency for the difference between
the
bid and that of the next lowest bidder, or for a penal sum not to
exceed ten per cent of the amount of the bond, whichever is less.
If the state, political subdivision, district, institution, or
agency does not award the contract to the next lowest bidder but
resubmits the project for bidding, the bidder failing to enter
into the contract and the surety on the bidder's bond,
except as provided
in division (G) of this section, are liable to the state,
political subdivision, district, institution, or agency for a
penal sum not to exceed ten per cent of the amount of the bid or
the costs in connection with the resubmission of printing new
contract documents, required advertising, and printing and
mailing notices to prospective bidders, whichever is less. (2) Indemnify the state, political subdivision, district,
institution, or agency against all damage suffered by failure to
perform the contract according to its provisions and in
accordance with the plans, details, specifications, and bills of
material therefor and to pay all lawful claims of subcontractors,
materialmen material suppliers, and laborers for labor performed or material
furnished in carrying forward, performing, or completing the
contract; and agree and assent that this undertaking is for the
benefit of any subcontractor, materialman material supplier, or laborer having a
just claim, as well as for the state, political subdivision,
district, institution, or agency. (C)(1) A bid guaranty filed pursuant to division (A)(2) of
this section shall be conditioned to provide that if the bid is
accepted, the bidder, after the awarding or the
recommendation for the award of the contract, whichever the
contracting authority designates, will enter into a proper contract in
accordance with the bid, plans, details, specifications, and
bills of material. If for any reason, other than as authorized
by section 9.31 of the Revised Code or division (G) of this
section, the bidder fails to enter into the contract, and the
contracting authority awards the contract to the next lowest
bidder, the bidder is liable to the state, political subdivision,
district, institution, or agency for the difference between the
bidder's
bid and that of the next lowest bidder, or for a penal sum not to
exceed ten per cent of the amount of the bid, whichever is less.
If the state, political subdivision, district, institution, or
agency does not award the contract to the next lowest bidder but
resubmits the project for bidding, the bidder failing to enter
into the contract, except as provided in division (G) of this
section, is liable to the state, political subdivision, district,
institution, or agency for a penal sum not to exceed ten per cent
of the amount of the bid or the costs in connection with the
resubmission, of printing new contract documents, required
advertising, and printing and mailing notices to prospective
bidders, whichever is less. If the bidder enters into the contract, the bidder,
at the time the contract is entered to,
shall file a bond for the
amount of the contract to indemnify the state, political
subdivision, district, institution, or agency against all damage
suffered by failure to perform the contract according to its
provisions and in accordance with the plans, details,
specifications, and bills of material therefor and to pay all
lawful claims of subcontractors, materialmen material suppliers, and laborers for
labor performed or material furnished in carrying forward,
performing, or completing the contract; and agree and assent that
this undertaking is for the benefit of any subcontractor,
materialman material supplier, or laborer having a just claim, as well as for the
state, political subdivision, district, institution, or agency. (2) A construction manager who enters into a contract pursuant to
sections 9.33 to 9.333 of the Revised Code,
if required by the public owner at the time the
construction manager enters into the contract, shall file a letter of credit
pursuant to Chapter 1305. of the Revised Code,
bond, certified check, or cashier's
check, for the value of the construction management contract to indemnify the
state, political subdivision, district, institution, or agency against all
damage suffered by the construction manager's failure to perform the contract
according to its provisions, and shall agree and assent that this undertaking
is for the benefit of the state, political subdivision, district, institution,
or agency. A letter of credit provided by the construction manager is
revocable only at the option of the beneficiary state, political subdivision,
district, institution, or agency. (D) Where the state, political subdivision, district,
institution, or agency accepts a bid but the bidder fails or
refuses to enter into a proper contract in accordance with the
bid, plans, details, specifications, and bills of material within
ten days after the awarding of the contract, the bidder and the
surety on any bond, except as provided in division (G) of this
section, are liable for the amount of the difference between the
bidder's
bid and that of the next lowest bidder, but not in excess of the
liability specified in division (B)(1) or (C) of this section.
Where the state, political subdivision, district, institution, or
agency then awards the bid to such next lowest bidder and such
next lowest bidder also fails or refuses to enter into a proper
contract in accordance with the bid, plans, details,
specifications, and bills of material within ten days after the
awarding of the contract, the liability of such next lowest
bidder, except as provided in division (G) of this section, is
the amount of the difference between the bids of such next lowest
bidder and the third lowest bidder, but not in excess of the
liability specified in division (B)(1) or (C) of this section.
Liability on account of an award to any lowest bidder beyond the
third lowest bidder shall be determined in like manner. (E) Notwithstanding division (C) of this section, where
the state, political subdivision, district, institution, or
agency resubmits the project for bidding, each bidder whose bid
was accepted but who failed or refused to enter into a proper
contract, except as provided in division (G) of this section, is
liable for an equal share of a penal sum in connection with the
resubmission, of printing new contract documents, required
advertising, and printing and mailing notices to prospective
bidders, but no bidder's liability shall exceed the amount of
the bidder's
bid guaranty. (F) All bid guaranties filed pursuant to this section
shall be payable to the state, political subdivision, district,
institution, or agency, be for the benefit of the state,
political subdivision, district, institution, or agency or any
person having a right of action thereon, and be deposited with,
and held by, the board, officer, or agent contracting on behalf
of the state, political subdivision, district, institution, or
agency. All bonds filed pursuant to this section shall be issued
by a surety company authorized to do business in this state as
surety approved by the board, officer, or agent awarding the
contract on behalf of the state, political subdivision, district,
institution, or agency. (G) A bidder for a contract with the state or any
political subdivision, district, institution, or other agency
thereof, excluding therefrom the Ohio department of
transportation, for a public improvement costing less than
one-half million dollars may withdraw the bid from
consideration
if the bidder's bid for some other contract with the state
or any
political subdivision, district, institution, or other agency
thereof, excluding therefrom the department of transportation,
for the public improvement costing less than one-half million
dollars has already been accepted, if the bidder certifies in
good faith
that the total amount of all the bidder's current contracts
is less than
one-half million dollars, and if the surety certifies in good
faith that the bidder is unable to perform the subsequent
contract because to do so would exceed the bidder's bonding
capacity. If a bid is withdrawn under authority of this
division, the contracting authority may award the contract to the
next lowest bidder or reject all bids and resubmit the project
for bidding, and neither the bidder nor the surety on the
bidder's bond
are liable for the difference between the bidder's bid and
that of the
next lowest bidder, for a penal sum, or for the costs of printing
new contract documents, required advertising, and printing and
mailing notices to prospective bidders. (H) Bid guaranties filed pursuant to division (A) of this
section shall be returned to all unsuccessful bidders immediately
after the contract is executed. The bid guaranty filed pursuant
to division (A)(2) of this section shall be returned to the
successful bidder upon filing of the bond required in division
(C) of this section. (I) For the purposes of this section, "next lowest bidder"
means, in the case of a political subdivision that has adopted
the model Ohio and United States preference requirements
promulgated pursuant to division (E) of section 125.11 of the
Revised Code, the next lowest bidder that qualifies under those
preference requirements. (J) For the purposes of this section and sections 153.56,
153.57, and 153.571 of the Revised Code, "public improvement,"
"subcontractor," "materialman material supplier," "laborer," and "materials" have
the same meanings as in section 1311.25 of the Revised Code.
Sec. 153.57. (A) The bond provided for in division (C)(1)
of
section 153.54 of the Revised Code shall be in substantially the
following form, and recovery of any claimant thereunder shall be
subject to sections 153.01 to 153.60 of the Revised Code, to the
same extent as if the provisions of those sections were fully
incorporated in the bond form: "KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned
............................ as principal and ...................
as sureties, are hereby held and firmly bound unto
................... in the penal sum of ............. dollars,
for the payment of which well and truly to be made, we hereby
jointly and severally bind ourselves, our heirs, executors,
administrators, successors, and assigns. Signed this ............. day of ................, .... THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas
the above named principal did on the ................ day of
....................., ...., enter into a contract with
................., which said contract is made a part of this
bond the same as though set forth herein; Now, if the said ....................... shall well and
faithfully do and perform the things agreed by ..................
to be done and performed according to the terms of said contract;
and shall pay all lawful claims of subcontractors, materialmen material suppliers,
and laborers, for labor performed and materials furnished in the
carrying forward, performing, or completing of said contract; we
agreeing and assenting that this undertaking shall be for the
benefit of any materialman material supplier or laborer having a just claim, as
well as for the obligee herein; then this obligation shall be
void; otherwise the same shall remain in full force and effect;
it being expressly understood and agreed that the liability of
the surety for any and all claims hereunder shall in no event
exceed the penal amount of this obligation as herein stated. The said surety hereby stipulates and agrees that no
modifications, omissions, or additions, in or to the terms of the
said contract or in or to the plans or specifications therefor
shall in any wise affect the obligations of said surety on its
bond." (B) The bond provided for in division (C)(2) of section
153.54 of the Revised Code shall be in substantially the following form: "KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned
......... as principal and ............. as sureties, are hereby held and
firmly bound unto ............. in the penal sum of .............. dollars,
for the payment of which well and truly be made, we hereby jointly and
severally bind ourselves, our heirs, executors, administrators, successors,
and assigns. Signed this ......... day of ........., ....... THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the
above named principal did on the ........ day of ........, ......, entered
into a contract with ............... which said contract is made a part of
this bond the same as though set forth herein; Now, if the said ................ shall well and faithfully do and perform
the things agreed by ............. to be done and performed according to the
terms of the said contract; we agreeing and assenting that this undertaking
shall be for the benefit of the obligee herein; then this obligation shall be
void; otherwise the same shall remain in full force and effect; it being
expressly understood and agreed that the liability of the surety for any and
all
claims hereunder shall in no event exceed the penal amount of the obligation
as herein stated. The surety hereby stipulates and agrees that no modifications, omissions,
or additions, in or to the terms of the contract shall in any way affect the
obligation of the surety on its bond."
Sec. 1311.01. As used in sections 1311.01 to 1311.22 of
the
Revised Code: (A) "Owner," "part owner," or "lessee" includes all the
interests either legal or equitable, which such person may have
in
the real estate upon which the improvements are made,
including
the interests held by any person under contracts of
purchase,
whether in writing or otherwise. (B) "Materialman"
or "material Material supplier" includes any person
by whom
any materials are furnished in furtherance of an
improvement. (C) "Laborer" includes any mechanic,
worker,
artisan,
or
other individual who performs labor or work in
furtherance of any
improvement. (D) "Subcontractor" includes any person who undertakes to
construct, alter, erect, improve, repair, demolish, remove, dig,
or drill any part of any improvement under a contract with any
person other than the owner, part owner, or lessee. (E) "Original contractor," except as otherwise provided in
section 1311.011 of the Revised
Code, includes a
construction
manager and any person who undertakes to construct,
alter, erect,
improve, repair, demolish, remove, dig, or drill
any part of any
improvement under a contract with an owner, part
owner, or lessee. (F) "Construction manager" means a person with substantial
discretion and authority to manage or direct an improvement,
provided that the person is in direct privity of contract with
the
owner, part owner, or lessee of the improvement. (G) "Notice of commencement" means the notice specified in
section 1311.04 of the Revised Code. (H) "Notice of furnishing" means the notice specified in
section 1311.05 of the Revised Code. (I) "Materials" means all products and substances
including,
without limitation, any gasoline, lubricating oil,
petroleum
products, powder, dynamite, blasting supplies and other
explosives, tools, equipment, or machinery furnished in
furtherance of an improvement. (J) "Improvement" means constructing, erecting, altering,
repairing, demolishing, or removing any building or appurtenance
thereto, fixture, bridge, or other structure, and any gas
pipeline
or well including, but not limited to, a well drilled or
constructed for the production of oil or gas; the furnishing of
tile for the drainage of any lot or land;
the excavation, cleanup,
or removal of hazardous material or waste from real property; the
enhancement or
embellishment of real property by seeding, sodding,
or the
planting thereon of any shrubs, trees, plants, vines, small
fruits, flowers, or nursery stock of any kind; and the grading or
filling to establish a grade. (K) "Wages" means the basic hourly rate of pay and all
other
contractually owed benefits.
Sec. 1311.011. (A) As used in this section: (1) "Home construction contract" means a contract entered
into between an original contractor and an owner, part owner, or
lessee for the improvement of any single- or double-family
dwelling or portion of the dwelling or a residential unit of any
condominium property that has been submitted to the provisions of
Chapter 5311. of the Revised Code; an addition to any land; or
the improvement of driveways, sidewalks, swimming pools, porches,
garages, carports, landscaping, fences, fallout shelters, siding,
roofing, storm windows, awnings, and other improvements that are
adjacent to single- or double-family dwellings or upon lands that
are adjacent to single- or double-family dwellings or residential
units of condominium property, if the dwelling, residential unit
of condominium property, or land is used or is intended to be
used as a personal residence by the owner, part owner, or lessee. (2) "Home purchase contract" means a contract for the
purchase of any single- or double-family dwelling or residential
unit of a condominium property that has been subjected to the
provisions of Chapter 5311. of the Revised Code if the purchaser
uses or intends to use the dwelling, a unit of a double dwelling,
or the condominium unit as his the purchaser's personal
residence. (3) "Lending institution" means any person that enters
into a contract with the owner, part owner, purchaser, or lessee
to provide financing for a home construction contract or a home
purchase contract, which financing is secured, in whole or in
part, by a mortgage on the real estate upon which the
improvements contemplated by the home construction contract are
to be made or upon the property that is the subject of the home
purchase contract, and that makes direct disbursements under the
contract to any original contractor or the owner, part owner,
purchaser, or lessee. (4) "Original contractor" includes any person with whom
the owner, part owner, lessee, or purchaser under a home purchase
contract or a home construction contract has directly contracted. (B) Notwithstanding sections 1311.02 to 1311.22 of the
Revised Code, all liens, except mortgage liens, that secure
payment for labor or work performed or materials furnished in
connection with a home construction contract or in connection
with a dwelling or residential unit of condominium property, that
is the subject of a home purchase contract are subject to the
following conditions: (1) No original contractor, subcontractor, materialman
material supplier, or laborer has a lien to secure payment for labor or
work performed
or materials furnished by the contractor, subcontractor,
materialman material supplier, or laborer, in connection with a
home
construction contract between the original contractor and the
owner, part owner, or lessee or in connection with a dwelling or
residential unit of condominium property, that is the subject of
a home purchase contract, if the owner, part owner, or lessee
paid the original contractor in full or if the purchaser has paid
in full for the amount of the home construction or home purchase
contract price, and the payment was made prior to the owner's,
part owner's, or lessee's receipt of a copy of an affidavit of
mechanics' lien pursuant to section 1311.07 of the Revised Code. An owner, part owner, or lessee may file with the county
recorder of the county in which the property that is the subject
of a home construction contract or a home purchase contract is
situated an affidavit that the owner, part owner, or
lessee has made payment in accordance
with this division. Except if the owner, part owner, or lessee
is guilty of fraud, any lien perfected on the property by any
subcontractor, materialman material supplier, or laborer for labor
or work
performed or for materials furnished is void and the property
wholly discharged from the lien, if the lien was perfected after
full payment was made in accordance with this division. The
recorder shall index and record the affidavit in the same manner
that releases of mortgages and other liens are indexed and
recorded, and shall receive the same fees for indexing and
recording the affidavit that are provided for the recording of
leases. Nothing in this section shall adversely affect a mechanics'
lien claimed against a prior owner if the lien is perfected prior
to a conveyance under a home purchase contract. (2) If the original contractor has not been paid in full
as provided in division (B)(1) of this section, no subcontractor,
materialman material supplier, or laborer has a lien to secure
payment for labor or work performed or materials furnished by the
subcontractor,
materialman material supplier, or laborer for an amount
greater than the amount due under the home construction contract
that has not been paid to the original contractor for the work,
labor, or materials or for an amount greater than the amount of
the home purchase contract price that has not been paid to the
original contractor. The total amount of all liens for labor or
work performed or for materials furnished in connection with a
home construction contract that may be enforced in lien
foreclosure proceedings shall not exceed the amount due under the
home construction contract that has not been paid to the original
contractor or the amount due under the home purchase contract
that has not been paid to the original contractor. If the amount due under the home construction contract or
under the home purchase contract to the original contractor is
insufficient to secure the mechanics' liens of all lien claimants
that arose out of the home construction contract or that arose
out of a contract in connection with a dwelling or residential
unit of condominium property, that is the subject of a home
purchase contract, each mechanics' lien shall be secured by a pro
rata share of the amount due to the original contractor, except
that mechanics' liens filed by laborers have priority. The pro
rata share shall be equal to the monetary amount of the amount
due to the original contractor that is subject to all valid
mechanics' liens on the property that is the subject of the home
purchase contract or all valid mechanics' liens under the home
construction contract multiplied by a fraction in which the
denominator is the total monetary amount of all valid mechanics'
liens on the property that is the subject of the home purchase
contract or of all valid mechanics' liens that arose out of the
home construction contract, and the numerator is the amount
claimed to be due by the lien claimant under a contract in
connection with a dwelling or residential unit of condominium
property, that is the subject of the home purchase contract or
under the home construction contract. For the purpose of this section, the amount due under a
home construction contract or a home purchase contract is the
unpaid balance under the home construction contract or the home
purchase contract, minus the cost to complete the contract
according to its terms and conditions, including any warranty or
repair work. (3) If, after receiving written notice from an owner, part
owner, purchaser, or lessee that full payment has been made by
the owner, part owner, purchaser, or lessee to the original
contractor for the amount of the home construction or home
purchase contract and that payment was made prior to the owner's,
part owner's, or lessee's receipt of a copy of an affidavit of
mechanics' lien pursuant to section 1311.07 of the Revised Code,
the lienholder fails within thirty days after receipt of the
notice to cause the lien securing payment for the work, labor, or
materials to be released of record, the lienholder is liable to
the owner, part owner, or lessee for all damages arising from
the lienholder's failure to cause the lien to be released. Damages shall include, but are not limited to, court costs and reasonable attorney fees incurred during any litigation between the owner and a lien claimant or lien claimants who have refused to release their liens after receiving a copy of the affidavit referred to in division (B)(1) of this section, or evidence that the cost of completing a home construction contract exceeded, or is reasonably expected to exceed, the balance due the original contractor under the home construction contract as provided in division (B)(2) of this section. (4) No lending institution shall make any payment to any
original contractor until the original contractor has given the
lending institution the original contractor's affidavit
stating: (a) That the original contractor has paid in full for all
labor and work performed and for all materials furnished by the
original contractor and all subcontractors, materialmen
material suppliers, and laborers prior to the date of the closing of the
purchase or
during and prior to the payment period, except such unpaid claims
as the original contractor specifically sets forth and identifies
both by claimant and by amount claimed; (b) That no claims exist other than those claims set forth
and identified in the affidavit required by division (B)(4) of
this section. (5) When making any payment under the home construction
contract or on behalf of the owner or part owner under a home
purchase contract, the lending institution may accept the
affidavit of the original contractor required by division (B)(4)
of this section and act in reliance upon it, unless it appears to
be fraudulent on its face. The lending institution is not
financially liable to the owner, part owner, purchaser, lessee,
or any other person for any payments, except for gross negligence
or fraud committed by the lending institution in making any
payment to the original contractor. After receipt of a written notice of a claim of a right to
a mechanic's lien by a lending institution, failure of the
lending institution to obtain a lien release from the
subcontractor, materialman material supplier, or laborer who serves
notice of such claim is prima-facie evidence of gross negligence. (6) Any owner, part owner, purchaser, or lessee, who
requests an original contractor to supply the affidavit required
by division (B)(4) of this section, may withhold any payment that
is due under the home construction contract or under the home
purchase contract until the original contractor provides the
owner, part owner, purchaser, or lessee with the affidavit. The
owner's, part owner's, purchaser's, or lessee's remedies and
rights under this section shall not be prejudiced by the
owner's, part owner's, purchaser's, or lessee's failure
to request or to obtain the affidavit provided for in division
(B)(4) of this section. (7) An owner, part owner, purchaser, lessee, or lending
institution may make payment jointly to the original contractor
and to a subcontractor, materialman material supplier, or laborer
as a condition to their giving lien releases. (8) If a subcontractor, materialman material supplier, or laborer
refuses to
supply a lien release to the original contractor, owner, part
owner, lessee, or lending institution because the amount of money
that the original contractor owes the subcontractor, materialman
material supplier, or laborer is in dispute, the owner, part owner,
lessee, and
lending institution shall withhold from payment to the original
contractor an amount of money equal to the amount of money
claimed by the subcontractor, materialman material supplier, or
laborer. If a subcontractor, materialman material supplier, or
laborer refuses within ten days
after receipt of a written request from either the original
contractor or the lending institution to state the amount due and
the last date that the lien claimant performed any labor or work
or furnished any material in furtherance of the improvement which
gives rise to the lien claimant's lien claim, the amount and the
last date shall
be stated by the original contractor. The owner, part owner,
lessee, and lending institution shall pay the withheld amount of
money to the original contractor when any of the following occur: (a) The subcontractor, materialman material supplier, or laborer
gives written notice to the owner, part owner, lessee, or lending
institution that the amount of money claimed to be due has been
paid. (b) The subcontractor, materialman material supplier, or laborer
delivers a lien release to the original contractor, owner, part owner,
lessee, or lending institution. (c) The original contractor provides the subcontractor,
materialman material supplier, or laborer with a bond, in a form
that is satisfactory to the owner, part owner, lessee, or lending
institution and in an amount equal to the amount of money claimed
to be due. (d) The time for filing a lien by the subcontractor,
materialman material supplier, or laborer has expired and no
affidavit of lien has been recorded pursuant to section 1311.06 of the Revised
Code. (9) Any lien release given pursuant to this section is
valid and enforceable without separate consideration for the
release.
Sec. 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, with the owner, part owner, or lessee of any interest in
real estate, or his the owner's, part owner's, or lessee's
authorized agent, and every person who as a subcontractor,
laborer, or material man supplier, performs any labor or
work or furnishes any material
to an original contractor or any subcontractor, in carrying forward,
performing, or completing any improvement, has a lien to secure the payment
therefor 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.
Sec. 1311.021. (A) Every person who performs any labor or
work upon or furnishes material for digging, drilling, boring,
operating, completing, or repairing, any well drilled or
constructed for the production of oil or gas or any injection
well which furthers the production of oil and gas or which
disposes of waste products generated by oil and gas operations,
or for altering, repairing, or constructing any oil derrick, oil
tank, or leasehold production pipe line by virtue of a contract,
express or implied, with the owner or part owner, or his the owner's
or part owner's authorized agent, of any oil and gas lease or leasehold
estate
or, in the event there is no lease or estate, any mineral estate,
and every subcontractor, laborer, and materialman material supplier
who performs any labor or work or furnishes material to an original contractor
or any subcontractor, in carrying forward, performing, or
completing the contract, has a lien to secure the payment thereof
upon the oil and gas lease or leasehold estate or, in the event
there is no lease or estate, any mineral estate, the oil or gas
produced therefrom and the proceeds thereof, and upon all
material located thereon or used in connection therewith. (B) The lien, insofar as it extends to oil or gas or the
proceeds of the sale of oil or gas, is not effective against any
purchaser or pipe line carrier of such oil or gas until a copy of
the affidavit provided for in section 1311.06 of the Revised Code
is delivered to such purchaser or pipe line carrier by certified
mail. (C) To the extent not inconsistent with this section, the
lien provided by this section is governed by this chapter, and
shall be perfected and enforced as other liens as provided by
this chapter, except as follows: (1) No owner, part owner, or lessee who contracts for
labor or work to be performed or materials furnished for an
improvement need prepare, provide, or record a notice of
commencement pursuant to section 1311.04 of the Revised Code. (2) No subcontractor or materialman material supplier who performs
work or
labor upon or furnishes material in furtherance of an improvement
need prepare, provide, or serve a notice of furnishing pursuant
to section 1311.05 of the Revised Code. (3) The affidavit required to be made and filed by an
original contractor, subcontractor, materialman material supplier,
or laborer under section 1311.06 of the Revised Code to claim a lien under
this
section need not include the first date that the lien claimant
performed any labor or work or furnished any material to the
improvement giving rise to his the claimant's lien. (4) For the purpose of determining issues of priority,
liens created under this section are effective from the date the
first visible work or labor is performed or the first materials
are furnished at the site of the improvement. (5) An owner, part owner, or lessee may request from an
original contractor an affidavit setting forth the name and
address of, a description of labor or work performed or materials
furnished by, and the total amount of the contract and the
balance owed to, all unpaid laborers, subcontractors, and
materialmen material suppliers providing labor or work or
furnishing material for
the improvement, and the serving of the affidavit after such a
request shall be a condition precedent to any right by the
original contractor to file a lien under this section. If an
owner, part owner, or lessee has not made a request under this
division, the original contractor need not serve an affidavit as
provided in this division to file a lien under this section. (6)(a) An owner, part owner, or lessee who receives an
affidavit pursuant to division (C)(5) of this section or a notice
pursuant to division (C)(6)(c) of this section may make payment
jointly to the original contractor and any laborers,
subcontractors, and materialmen material suppliers who are listed
in such an
affidavit or who serve such a notice for the amount shown to be
unpaid by such affidavit and notices or may require the original
contractor to obtain lien waivers from any such persons prior to
making payment to the original contractor. (b) No person who fails to serve the owner, part owner, or
lessee with a notice pursuant to division (C)(6)(c) of this
section and who is omitted from an affidavit provided to the
owner, part owner, or lessee pursuant to division (C)(5) of this
section shall have a right to file a lien pursuant to this
section if the owner has paid the full amount due on the
contract, including payment to the parties listed on the
affidavit or from whom notices were received either in the full
amount due to such parties or in such lesser amount as represents
their pro-rata portion of the full amount of the contract with
the original contractor. (c) Any laborer, subcontractor, or materialman material supplier
may serve upon the owner, part owner, or lessee a notice in writing, which
notice shall be such as will inform the owner, part owner, or
lessee of the improvement, of the nature of the work performed or
to be performed, the materials furnished or to be furnished, the
amount due or to become due therefor, the identity of the person
with whom such laborer, subcontractor, or materialman
material supplier has contracted, and the identity of the well, oil
derrick, oil tank,
or leasehold production pipe line, the permit number, and the
county upon which such work was or is to be performed or
materials were or are to be furnished. (7) The provisions of division (B) of section 1311.15 of
the Revised Code shall be applicable with respect to payments to
any subcontractors, materialmen material suppliers, or laborers
identified on the affidavit provided in division (C)(5) of this section.
Sec. 1311.03. Any person who performs labor or work or furnishes material,
for the construction, alteration, or repair of any street, turnpike, road,
sidewalk, way, drain, ditch, or sewer by virtue of a private contract between
him the person and the owner, part owner, or lessee of lands
upon which the same may be
constructed, altered, or repaired, or of lands abutting thereon, or as
subcontractor, laborer, or materialman material supplier, performs
labor or work or furnishes
material to such original contractor or to any subcontractor in carrying
forward or completing such contract, has a lien for the payment thereof
against the lands of the owner, part owner, or lessee, upon which the street,
turnpike, road, sidewalk, way, drain, or sewer is constructed or upon which
any such street, turnpike, road, sidewalk, way, drain, ditch, or sewer abuts,
as provided in section 1311.02 of the Revised Code.
Sec. 1311.04. (A)(1) 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 mechanics'
lien under
sections 1311.01 to 1311.22 of the Revised Code, the
owner, part
owner, or lessee 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 in substantially the form
specified in division (B)
of this section. (2) Only one notice of commencement is required to be
filed
for a single improvement and if more than one notice of
commencement is filed for a single improvement, all notices filed
after the original notice shall be deemed to be amendments to the
original notice. If an owner, part owner, or lessee contracts
with additional original contractors, lenders, or sureties not
identified in the original notice of commencement filed for the
improvement, the owner, part owner, or lessee shall amend the
original notice of commencement to identify the additional
original contractors, lenders, and sureties. The date of the
filing of the amended notice is the date of the filing of the
original notice of commencement. (B) The notice of commencement required under division (A)
of this section shall contain, in affidavit form, all of the
following information: (1) The legal description of the real property on which
the
improvement is to be made. For purposes of this division, a
description sufficient to describe the real property for the
purpose of conveyance, or contained in the instrument by which
the
owner, part owner, or lessee took title, is a legal
description. (2) A brief description of the improvement to be performed
on the property containing sufficient specificity to permit lien
claimants to identify the improvement; (3) The name, address, and capacity of the owner, part
owner, or lessee of the real property contracting for the
improvement; (4) The name and address of the fee owner of the real
property, if the person contracting for the improvement is a land
contract vendee or lessee; (5) The name and address of the owner's, part owner's, or
lessee's designee, if any; (6) The name and address of all original contractors,
except
that if the notice of commencement is recorded for an
improvement
involving a single- or double-family dwelling and if
more than one
original contractor is involved, instead of listing
each original
contractor, the owner shall state that multiple
original
contractors are involved in the improvement; (7) The date the owner, part owner, or lessee first
executed
a contract with an original contractor for the
improvement; (8) The name and address of all lending institutions which
provide financing for the improvements, if any; (9) The name and address of all sureties on any bond which
guarantee payment of the original contractor's obligations under
the contract for the improvement, if any; (10) The following statement: "To Lien Claimants and Subsequent Purchasers: Take notice that labor or work is about to begin on or
materials are about to be furnished for an improvement to the
real
property described in this instrument. A person having a
mechanics' lien may preserve the lien by providing a notice of
furnishing to the above-named designee and
the above-named
designee's original contractor, if any, and by timely recording an
affidavit pursuant to section 1311.06 of the Revised Code. A copy of this notice may be obtained upon making a written
request by certified mail to the above-named owner, part owner,
lessee, designee, or the person with whom you have contracted." (11) The name and address of the person preparing the
notice; (12) An affidavit of the owner, part owner, or lessee or
the
agent of the owner, part owner, or lessee which verifies the
notice. (C) If the notice of commencement furnished by or for an
owner, part owner, or lessee contains incorrect information, the
owner, part owner, or lessee is liable for any loss of lien
rights
of a lien claimant and any actual expenses incurred by the
lien
claimant in maintaining lien rights, including attorney's
fees, if
the loss and expenses incurred are a direct result of
the lien
claimant's reliance on the incorrect information. Any lien claimant who has included incorrect information in
the claimant's affidavit for a lien under section 1311.06 of
the
Revised
Code, as a result of incorrect information contained
in
the
notice of commencement, may file for record an amended
affidavit
for a lien. The amended affidavit shall contain all of
the
information required by section 1311.06 of the Revised Code
for
an original affidavit. The lien claimant shall serve a copy
of
the amended affidavit on the owner, part owner, or lessee as
provided in section 1311.07 of the Revised Code. The lien
claimant may file the amended affidavit for record at any time
during the time that the lien acquired by the original affidavit
continues in effect under section 1311.13 of the Revised Code.
In
no event shall the amended affidavit extend such time period.
The
filing of an amended affidavit does not constitute a waiver
of the
rights granted by this division. (D) Within ten days after the date a subcontractor,
material supplier, or laborer serves a written
request
upon the
owner,
part owner, or lessee, or designee for a
copy of
the notice
of
commencement, the owner, part owner, lessee,
or
designee shall
serve a copy of the notice of commencement to
the
requesting
subcontractor,
material supplier, or
laborer. (E) Within ten days after the date a subcontractor,
material supplier, or laborer serves a written
request
for a copy
of
the notice of commencement upon the original
contractor who has
been provided with a notice of commencement
from the owner, part
owner, or lessee, or designee and with whom
the subcontractor,
material supplier, or laborer has
a
direct contract,
the original
contractor shall serve a copy of
the
notice of commencement to
the
requesting subcontractor,
material supplier, or
laborer. (F) Within ten days after the date a subcontractor,
material supplier, or laborer serves a written
request
for a copy
of
the notice of commencement upon the
subcontractor
who has been
provided with a notice of commencement
from the
owner, part
owner,
lessee, designee, or original
contractor and
with whom the
subcontractor,
material
supplier, or
laborer has a
direct
contract, the
subcontractor
shall serve a
copy of the notice of
commencement
upon the
requesting
subcontractor,
material
supplier,
or
laborer. (G)(1) Except as provided in division (G)(2) of this
section, the owner, part owner, lessee, or designee shall post
and
maintain posted a copy of the notice of commencement in a
conspicuous place on the real property described in the notice
during the course of the actual physical improvement to the real
property. (2) No owner, part owner, lessee, or designee, has to post
a
copy of the notice of commencement on the real property
described
in the notice for an improvement that is the subject of
a home
purchase contract. (H) The owner, part owner, lessee, or designee shall serve
a
copy of the notice of commencement upon the original
contractor.
If the owner, part owner, lessee, or designee fails
to serve a
copy of the notice of commencement upon the original
contractor,
the owner, part owner, or lessee is liable to the
original
contractor for all actual expenses incurred by the
original
contractor in obtaining the information otherwise
provided by the
notice of commencement. (I) If the owner, part owner, lessee, or designee fails to
record the notice of commencement in accordance with this
section,
the time within which a subcontractor or
material
supplier may
serve a notice of furnishing as required by section
1311.05 of
the
Revised Code is extended until twenty-one days
after the
notice of
commencement has been recorded.
A
subcontractor or material
supplier need not serve a notice of
furnishing to preserve lien
rights for the period before the
notice of
commencement is
recorded. (J) If the owner, part owner, lessee, or designee fails to
serve, upon written request, the notice of commencement in
accordance with this section, the time within which a
subcontractor or
material supplier may serve a notice
of
furnishing as
required by section 1311.05 of the Revised Code
is
extended until
twenty-one days after the notice of commencement
actually has
been served to the subcontractor or
material
supplier.
The owner, part
owner, or lessee who fails to
serve the
notice pursuant to this
section is liable to any
subcontractor or
material supplier who becomes
a lien
claimant for all actual
expenses incurred by the lien
claimant in
obtaining the
information that would have been
contained in the
notice. (K) If an owner, part owner, lessee, or designee fails to
post or maintain a copy of the notice of commencement as required
by division (G)(1) of this section, the owner, part owner, or
lessee is liable to a subcontractor,
material
supplier,
or
laborer who
becomes a lien claimant for all actual
expenses
incurred by the
lien claimant in obtaining the
information
otherwise provided by
the posting. (L) If an original contractor or subcontractor who has
been
provided with a notice of commencement fails to serve a copy
of
the notice of commencement to any subcontractor,
material
supplier, or laborer who requests it, the original
contractor or
subcontractor who fails to serve the copy of the
notice is liable
to the subcontractor,
material
supplier, or laborer who
made the
request for all costs incurred
by the subcontractor,
material
supplier, or laborer
in
obtaining the information contained in
the
notice
of
commencement,
provided that an original contractor or
subcontractor who fails to
provide the notice upon request is not
liable under this division
to any subcontractor,
material
supplier, or laborer
with whom
the original
contractor or
subcontractor is not in
direct privity of contract. (M)(1) If after the first work, labor, or material has
been
performed on or furnished to the improvement, the owner,
part
owner, lessee, or designee fails to serve, record, or post a
notice of commencement as required by this section, the original
contractor may, in writing, request the owner, part owner,
lessee,
or designee to serve, record, or post the notice. If an
owner,
part owner, lessee, or
the designee
of an owner,
part owner,
or
lessee fails or refuses to
serve, record, or post a notice of
commencement within ten days
of receipt of a request, the owner,
part owner, or lessee is
liable for
the owner's, part owner's,
or
lessee's failure or
refusal and for the designee's failure
or
refusal, without recourse to the original contractor for all
damages, costs, and expenses which result from the filing of a
valid mechanics' lien to the extent that the lien, damages,
costs,
and expenses could have been avoided through proper
payment. (2) Nothing in this division shall be interpreted as to
either of the following: (a) Relieving an original contractor from
the duty to
pay
the original contractor's subcontractors,
material suppliers, and
laborers for labor or work
performed or
materials furnished
pursuant to a contract directly
with the
original contractor; (b) Obligating an owner, part owner, or lessee to pay for
work or labor performed or materials furnished by subcontractors,
material suppliers, or laborers pursuant to direct
contracts with
the
original contractor. (N)(1) If the owner, part owner, or lessee fails to record
a
notice of commencement or an amended notice, any person holding
a
mortgage on the real property to be improved may record a
notice
of commencement or an amended notice on behalf of the
owner, part
owner, or lessee. If the owner, part owner, or
lessee fails to
record a notice of commencement or an amended
notice within the
later of ten days after the performance of any
labor or work or
the furnishing of any material for an
improvement on real property
which gives rise to a mechanics'
lien under sections 1311.01 to
1311.22 of the Revised Code or
three days after service of a
demand to record the notice or
amended notice by the original
contractor, the original
contractor may record a notice of
commencement or an amended
notice on behalf of the owner, part
owner, or lessee. (2) If the original contractor or a mortgage holder has
recorded a notice of commencement or an amended notice on behalf
of the owner, part owner, or lessee, the owner, part owner, or
lessee is liable to the original contractor or mortgage holder
for
all costs and expenses incurred in obtaining the information
contained in the notice of commencement or an amended notice and
all costs incurred in the preparation and recording of the notice
of commencement or an amended notice. (3) Unless required to file the notice of commencement or
an
amended notice on behalf of the owner, part owner, or lessee,
the
party filing a written notice of commencement or amended
notice on
behalf of the owner, part owner, or lessee is not
liable to the
owner, part owner, or lessee for any errors
contained in the
notice of commencement or amended notice. (4) If a mortgage holder or an original contractor records
a
notice of commencement or amended notice on behalf of an owner,
part owner, or lessee, such fact must be included on the notice
or
amended notice. (O) 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, except that when a lending institution as defined in division (A)(3) of section 1311.011 of the Revised Code requires that a notice of commencement be recorded as part of the financing for a home construction contract, which is secured in whole or in part by a mortgage on real estate upon which the improvements are to be constructed, the owner, part owner, or lessee may file a notice of commencement pursuant to this section by recording the notice of commencement in the county recorder's office of the county where the owner, part owner, or lessee's property is located. If the property is located in more than one county, the owner, part owner, or lessee shall record the notice of commencement in the county recorders' office of each county in which the property is located. If the owner, part owner, or lessee files a notice of commencement pursuant to this division, the attachment, continuance, and priority provisions of section 1311.13 of the Revised Code apply to that improvement, but the notice of furnishing requirements specified in section 1311.05 of the Revised Code do not apply to that improvement. (P) The county recorder of the county where a notice of
commencement is filed for record shall endorse the date and hour
of its filing and cause it to be recorded as mechanics' liens are
recorded, and collect the same fees for recording the notice of
commencement as are provided in section 317.32 of the Revised
Code. The recorder shall index the real property described in
the
notice of commencement and shall index the names of all
owners,
part owners, lessees, and land contract vendees in the
direct
index and the names of all original contractors in the
reverse
index as provided for in section 317.18 of the Revised
Code. (Q) Notwithstanding this section, if the owner, part
owner,
or lessee is a telephone company, an electric light
company, a gas
company, a water works company, all as defined in
section 4905.03
of the Revised Code, or a subsidiary or affiliate
thereof, the
owner, part owner, or lessee may, but is not
required to, record a
notice of commencement pursuant to division
(A) of this section,
and is not required to serve, post, and
provide copies of a notice
of commencement pursuant to divisions
(D), (G), and (H) of this
section unless such owner, part owner,
or lessee elects to record
the notice of commencement. If the
owner, part owner, or lessee
elects to record the notice of
commencement and the improvement
extends beyond one parcel of
real property or one county, the
owner, part owner, or lessee
may, in lieu of using the legal
description required in division
(B)(1) of this section, use a
description which reasonably
describes the real property on which
the improvement is to be
made. Any description used other than
the description specified
in division (B)(1) of this section shall
refer to the township
and county in which the improvement is
located, the name and
route number of any local, state, or federal
highway near the
improvement, if any, the post office address of
the real
property, if any, and the name by which the owner, part
owner, or
lessee refers to the improvement. If an owner, part owner, or lessee elects not to record,
serve, post, or provide copies of a notice of commencement
pursuant to divisions (A), (D), (G)(1), and (H) of this section,
the owner, part owner, or lessee is subject to all applicable
liabilities pursuant to divisions
(C), (H), (J), (K), (M), and (N)
of this section. (R) If an owner, part owner, lessee, or designee fails to
record a notice of commencement in accordance with this section,
no subcontractor or
material supplier who performs
labor or work
upon
or furnishes material in furtherance of that
improvement has
to
serve a notice of furnishing in accordance with
section 1311.05
of the Revised Code in order to preserve
the
subcontractor's or
material supplier's lien rights.
(S) A notice of commencement filed as provided herein expires six years after its filing date unless the notice of commencement or amendments made to the notice of commencement specify otherwise.
Sec. 1311.05. (A) Except as provided in section 1311.04
of
the Revised Code and this section, a subcontractor or
materialman
material supplier who performs labor or work upon or furnishes
material
in furtherance of an improvement to real property and who
wishes
to preserve
his
the subcontractor's or material supplier's
lien
rights shall serve a notice of furnishing,
if any person has
recorded a notice of commencement in accordance
with section
1311.04 of the Revised Code, upon the owner's, part
owner's, or
lessee's designee named in the notice of commencement
or amended
notice and the original contractor under the original
contract
pursuant to which
he
the subcontractor or
material supplier is
performing labor or work or
furnishing materials, as named in the
notice of commencement or
amended notice and at the address listed
in the notice or amended
notice at any time after the recording of
the notice of
commencement or amended notice but within twenty-one
days after
performing the first labor or work or furnishing the
first
materials or within the extended time period provided for in
division (I) or (J) of section 1311.04 of the Revised Code. If
an
owner, part owner, or lessee has not named a designee in the
notice of commencement or amended notice or if the designee has
died or otherwise has ceased to exist, the subcontractor or
materialman
material supplier shall serve the notice of furnishing
upon the owner,
part owner, or lessee named in the notice of
commencement. If no
designee is named or if the designee has died
or otherwise has
ceased to exist, and if more than one owner is
named in the
notice of commencement, service of the notice of
furnishing to
the first owner, part owner, or lessee named in the
notice of
commencement is sufficient. No original contractor has
to serve
a notice of furnishing to preserve lien rights arising
from a
contract with an owner, part owner, or lessee. No
materialman
material supplier
who is in direct privity of contract
with an owner, part owner,
or lessee has to serve a notice of
furnishing upon the owner,
part owner, or lessee or designee in
order to preserve
his
the
material supplier's lien rights. No
subcontractor or
materialman
material supplier who is in direct
privity
of contract with the original contractor has to serve a
notice of
furnishing upon the original contractor in order to
preserve
his
the
subcontractor's or material supplier's lien rights. If any person has recorded a notice of commencement in
accordance with section 1311.04 of the Revised Code for an
improvement involving a single- or double-family dwelling and if
that notice states that multiple original contractors are
involved
in the improvement, a subcontractor or
materialman
material supplier
does
not have to serve a notice of furnishing upon any original
contractor in order to preserve
his
the subcontractor's or
material supplier's lien rights. A subcontractor or
materialman
material supplier who serves a
notice of furnishing in conformity with this section does not have
to serve
an amended notice of furnishing on any party if
he
the
subcontractor
or material supplier receives an
amended notice of
commencement subsequent to service of
his
the
subcontractor's or
material supplier's notice of furnishing. If a
subcontractor or
materialman
material supplier serves a
notice of furnishing based
upon information contained in any
notice of commencement or
amended notice of commencement relative
to the improvement for
which
he
the subcontractor or
material supplier performs labor or
work or
furnishes material, the notice of furnishing is deemed
effective
even if the notice of commencement already has been
amended or is
amended in the future. If a lender is named in the notice of commencement or
amended
notice, a subcontractor or
materialman
material supplier
may serve a
copy
of the notice of furnishing upon the lender at the address
listed
in the notice or amended notice, provided that no
subcontractor
or
materialman
material supplier is required to serve a
copy of the
notice of furnishing upon the lender to preserve
his
the
subcontractor's or material supplier's lien rights. The
receipt
of a notice of furnishing by a lender imposes no duty
upon the
lender by implication or otherwise with respect to the
disbursement of any loan proceeds or the payment to any
subcontractor,
materialman
material supplier, or any other person. (B) The notice of furnishing shall be in substantially the
following form: "Notice of Furnishing(For use in connection with improvementsto property other than
public improvements)To: .......................................................(Name of owner, part owner, or lessee or designeefrom the
notice
of commencement)...........................................................(Address from the notice of commencement)To:
....................................................... (Name of original contractor from notice of commencement)
(Address of original contractor from notice
of commencement)Please take notice that the undersigned is performing certain
labor or work or furnishing certain materials to ..............
.......................................................(name and
address of other contracting party)....................... in
connection with the improvement to the real property located at
........................ The labor, work, or materials were
performed or furnished first or will be performed or furnished
first on ............ (date). WARNING TO OWNER: THIS NOTICE IS REQUIRED BY THE OHIO MECHANICS'
LIEN LAW. IF YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS AND DUTIES
UNDER THESE STATUTES YOU SHOULD SEEK LEGAL ASSISTANCE TO PROTECT
YOU FROM THE POSSIBILITY OF PAYING TWICE FOR THE IMPROVEMENTS TO
YOUR PROPERTY.
|
..................................... |
|
(Name and address of lien claimant) |
|
By .................................. |
|
(Name and capacity of party signing |
|
for lien claimant) |
|
..................................... |
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(Address of party signing) |
(C) The description of the location of the property
required
in the notice of furnishing is sufficient if it
reasonably
identifies the real property upon which the labor or
work is
performed or for which the material is furnished. (D)(1) Except as provided in division (D)(2) of this
section, a notice of furnishing served more than twenty-one days
after a subcontractor or
materialman
material supplier who is
required by this
section to serve a notice of furnishing, first
performed labor or
work or furnished material at the site of the
improvement
preserves the subcontractor's or
materialman's
material supplier's
lien rights for
amounts owing for labor and work
performed and materials
furnished within the twenty-one-day period
immediately preceding
service of the notice of furnishing and
thereafter, but does not
revive any prior lien rights for labor or
work performed or
materials furnished prior to the twenty-one days
immediately
preceding service of the notice of furnishing. (2) A notice of furnishing served within the applicable
period provided for in section 1311.04 of the Revised Code
preserves the subcontractor's or
materialman's
material supplier's
lien rights for
amounts owing for labor and work performed and
materials
furnished from the date the labor or work was first
performed or
materials were first furnished through the date of
service of the
notice of furnishing and thereafter. A notice of
furnishing
served after the applicable period provided for in
section
1311.04 of the Revised Code does not revive any prior lien
rights
for labor or work performed or materials furnished prior to
the
twenty-one days immediately preceding service of the notice of
furnishing. (E) 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. (F) A notice of furnishing, even if served upon a
mortgagee
of real 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 of the Revised Code. (G) No laborer must serve a notice of furnishing in
accordance with this section to preserve lien rights. (H) No subcontractor or
materialman
material supplier who
performs
labor or work upon or furnishes material in furtherance
of an improvement
has to serve a notice of furnishing in
accordance with this
section in order to preserve
his
the
subcontractor's or
material supplier's lien rights if the owner, part
owner, or lessee who contracted for the labor, work, or materials
fails to record a notice of commencement in accordance with
section 1311.04 of the Revised Code.
(I) If a notice of commencement is filed as provided in division (O) of section 1311.04 of the Revised Code, the subcontractors and material suppliers working on or providing materials to the improvement shall not be required to serve notices of furnishing as provided in division (A) of section 1311.05 of the Revised Code hereinabove in order to preserve lien rights.
Sec. 1311.12. (A) A mechanic's lien for furnishing
materials arises under sections 1311.01 to 1311.22 of the Revised
Code only if the materials are: (1) Furnished with the intent, as evidenced by the
contract of sale, the delivery order, delivery to the site by the
claimant or at the claimant's direction, or by other evidence,
that the materials be used in the course of the improvement with
which the lien arises; (2) Incorporated in the improvement or consumed as normal
wastage in the course of the improvement; (3) Specifically fabricated for incorporation in the
improvements and not readily resalable in the ordinary course of
the fabricator's business even if not actually incorporated in
the improvement; (4) Used for the improvement or for the operation of
machinery or equipment used in the course of the improvement and
not remaining in the improvement, subject to diminution by the
salvage value of those materials; or (5) Tools or machinery used on the particular improvement,
subject to division (C) of this section. (B) The delivery of materials to the site of the
improvement, whether or not by the claimant, creates a conclusive
presumption that the materials were used in the course of the
improvement or were incorporated into the improvement. (C) A mechanics' lien for furnishing tools or machinery
which arises under division (A)(5) of this section is limited to
either of the following: (1) If the tools or machinery are rented, the lien is for
the reasonable rental value for the period of actual use and any
reasonable period of nonuse taken into account in the rental
contract. (2) If the tools or machinery are purchased, the lien is
for the price, but the lien only arises if the tools or machinery
were purchased for use in the course of the particular
improvement and have no substantial value to the purchaser after
the completion of the improvement on which they were used. (D) All of the deliveries or the sales, or both, by a lien
claimant material supplier of materials, including tools and machinery to or for an
improvement, as ordered or purchased by an owner, original contractor, or subcontractor, shall give rise to one mechanics' lien for the unpaid
portion of the sales to that owner, original contractor, or subcontractor. Nothing in this division shall prohibit the filing of more than one lien if a material supplier sold materials to more than one owner, original contractor, or subcontractor for the same improvement.
Sec. 1311.13. (A)(1) Liens All liens under sections 1311.01 to
1311.22 of the Revised Code for labor or work performed or
materials furnished to the same improvement prior to the recording of the notice of
commencement pursuant to section 1311.04 of the Revised Code are
effective from the date the first visible work or labor is
performed or the first materials are furnished by the first original
contractor, subcontractor, materialman material supplier, or laborer at the site of to work, labor on, or provide materials to
the improvement. (2) Except as provided in division (A)(3) of this section,
liens under sections 1311.01 to 1311.22 of the Revised Code for
labor or work performed or materials furnished after the
recording of a notice of commencement pursuant to section 1311.04
of the Revised Code are effective from the date of the recording
of the notice of commencement. (3) Notwithstanding division (A)(2) of this section, if
there is a valid and recorded lien with an effective date
described in division (A)(1) of this section which has not been
released at the time a lien is filed by a laborer after the
recording of the notice of commencement or if a valid lien
against the improvement pursuant to division (A)(1) of this
section is filed subsequent to the filing of a laborer's lien,
the lien of the laborer is effective from the date the first
visible labor or work was performed or materials were furnished
by the original contractor, subcontractor, materialman material supplier, or
laborer at the site of the improvement. (B)(1) Except for the liens of laborers as provided in
division (B)(2) of this section, a lien securing the claim of a
claimant who has performed labor or work or furnished materials
both prior to and after the recording of the notice of
commencement pursuant to section 1311.04 of the Revised Code has
two effective dates. That portion of the lien which arises from
labor or work performed or materials furnished prior to the
filing of the notice of commencement has the effective date
described in division (A)(1) of this section and that portion of
the lien which arises from labor or work performed or materials
furnished on or after the filing of the notice of commencement
has the effective date described in division (A)(2) of this
section. Any payment received by the lien claimant both before
and after the filing of a lien shall be applied first to the
labor or work performed or materials furnished prior to the
filing of the notice of commencement, and then to labor or work
performed or materials furnished on and after the filing of the
notice of commencement. (2) A lien filed by a laborer for labor or work performed
both prior to and after the recording of the notice of
commencement pursuant to section 1311.04 of the Revised Code has
one effective date as described in division (A)(1) of this
section. (C) Liens under sections 1311.01 to 1311.22 of the Revised
Code continue in force for six years after an affidavit is filed
in the office of the county recorder under section 1311.06 of the
Revised Code. If an action is brought to enforce the lien within
that time, the lien continues in force until final adjudication
thereof. (D) If several liens are obtained by several persons upon
the same improvement they have no priority among themselves,
except as follows: (1) Liens which have an effective date described in
division (A)(1) of this section have priority over all other
liens, except for liens described in divisions (A)(3), (B)(2), or
(D)(2) of this section, to the extent of the value of the work
and labor performed and materials furnished prior to the
recording of the notice of commencement pursuant to section
1311.04 of the Revised Code. (2) Liens filed by laborers have priority over all other
liens whether the labor or work was performed before or after the
recording of the notice of commencement pursuant to section
1311.04 of the Revised Code. (E)(1) Except as provided in division (E)(2) of this
section, liens which have an effective date described in division
(A)(1) of this section shall be preferred to the extent of the
value of the labor or work performed or materials furnished prior
to the recording of the notice of commencement, to all other
titles, liens, or encumbrances which may attach to or upon the
improvement or to or upon the land upon which it is situated,
which either shall be given or recorded subsequent to the
effective date of the liens described in division (A)(1) of this
section. (2) Liens recorded by laborers which have an effective
date described in division (A)(1) or (3) of this section shall be
preferred to all other titles, liens, or encumbrances which may
attach to or upon the improvement or to or upon the land upon
which it is situated which are given or recorded subsequent to
the effective date of such laborers' liens. (F) Liens which have an effective date described in
division (A)(2) of this section shall be preferred to all other
titles, liens, or encumbrances which may attach to or upon such
improvement or to or upon the land upon which it is situated,
which either are given or recorded subsequent to the recording of
the notice of commencement. (G) Unless otherwise stipulated in a mortgage securing financing for the construction of an improvement, if a mortgage securing financing for the construction of an improvement and notice of commencement for said improvement are recorded on the same day, the mortgage shall be considered recorded before the notice of commencement for purposes of priority described in this section. (H) The recorder may destroy the record of all mechanics'
liens which have been recorded for a period of ten years or
longer.
Sec. 1311.14. (A) Except as provided in this section, the lien
of a mortgage given in whole or in part to improve real estate,
or to pay off prior encumbrances thereon, or both, the proceeds
of which are actually used in the improvement in the manner
contemplated in sections 1311.02 and 1311.03 of the Revised Code,
or to pay off prior encumbrances, or both, and which mortgage
contains therein the correct name and address of the mortgagee,
together with a covenant between the mortgagor and mortgagee
authorizing the mortgagee to do all things provided to be done by
the mortgagee under this section, shall be prior to all
mechanic's, materialmen's material supplier's, and similar
liens and all liens provided for in this chapter that are filed for record
after the
improvement mortgage is filed for record, to the extent that the
proceeds thereof are used and applied for the purposes of and
pursuant to this section. Such mortgage is a lien on the
premises therein described from the time it is filed for record
for the full amount that is ultimately and actually paid out
under the mortgage, regardless of the time when the money secured
thereby is advanced. Any laborer or materialman material supplier who claims or at any
time can claim a right of lien on the premises for any labor or work
performed or to be performed or for material furnished or to be
furnished for the improvement, may serve a written notice on the
mortgagee, which notice shall show the kind and nature of the
labor or work performed or to be performed, or both, and of the
material furnished or to be furnished, or both, and the amount
claimed or to be claimed therefor, and a description of the
premises upon which the labor or work has been or is to be
performed or to which the material has been or is to be
furnished, and the amount claimed therefor. (B) The mortgagee need not pay out any of the mortgage fund for
fifteen days after filing the mortgage. At the end of such
period, he the mortgagee may refuse to go forward with the loan
or to pay out
the fund, in which case, if no funds have been advanced, he the
mortgagee shall make, execute, and deliver to the mortgagor, or to the
county
recorder to be recorded, a proper release of the mortgage, but if
the mortgagee elects to complete the loan, he the mortgagee
shall, in order to obtain the priority set forth in this section, distribute
the
mortgage fund in the following order: (A)(1) The mortgagee may at any time pay off the prior
encumbrance, or withhold the amount thereof for that purpose.
(B)(2) Out of the residue of the fund, the mortgagee may at
any time retain sufficient funds to complete the improvement,
according to the original plans, specifications, and contracts,
and within the original contract price.
(C)(3) The mortgagee may from time to time pay out on the
owner's order, directly to the original contractor or
subcontractor, or directly to the owner himself if he
the owner is his the owner's own contractor, such sums as
the owner certifies to be necessary to meet and pay labor payrolls for the
improvement.
(D)(4) The mortgagee shall pay on the order of the owner, the
accounts of the materialmen material suppliers and laborers who
have filed with the mortgagee a written notice as provided in this section,
the
amounts due for labor or work then performed and material then
furnished for the improvement; and shall retain out of the
mortgage fund such money to become due as is shown by the notice
served and shall hold such money, and shall pay on the order of
the owner, the amounts due to such persons who have served such
notices, if the mortgagee has sufficient money in his the
mortgagee's hands to do
so and also to complete the improvement; but if the mortgagee has funds in
his the mortgagee's hands insufficient to pay all such laborers
and materialmen material suppliers in full and to complete the
improvement, he the mortgagee shall
retain sufficient money to complete the improvement and to
distribute the balance pro rata among the materialmen
material suppliers and
laborers who have filed such notices.
(E)(5) If the owner refuses to issue an order to pay the
amount of the notice filed, the mortgagee shall retain the whole
amount claimed until the proper amount has been agreed upon or
judicially determined, provided that the mortgagee may withhold
sufficient funds to complete the improvement.
(F)(6) The mortgagee shall pay out on the owners' order,
directly to materialmen material suppliers or laborers who have performed labor or
work or furnished material for the improvement.
(G)(7) The mortgagee shall pay the balance of the mortgage
fund after the improvement is completed to the owner, or to
whomsoever the owner directs.
In case the mortgagee pays out the fund otherwise than as
provided in this section, then the lien of the mortgage to the
extent that the funds had been otherwise paid, is subsequent to
liens of original contractors, subcontractors, materialmen material suppliers, and
laborers; but in no case is such a mortgagee obligated to pay or
liable at law for more than the principal of the mortgage. All payments and distributions made by the mortgagee as
provided in this section shall be considered the same as if paid
to the owner, part owner, lessee, or mortgagor under the
mortgage, and as if paid to the original contractor, and when
paid pursuant to this section there is no further liability on
the part of the mortgagee. This chapter does not require the
mortgagee to ascertain by affidavit or otherwise the respective
claims of original contractors, subcontractors, laborers, or
materialmen material suppliers, or to determine priorities among lien claimants. The mortgagee is not responsible for a mistake of the owner
in determining priorities, or for any failure of the payee
properly to distribute funds paid on the written order of the
owner. (C) Any original contractor, subcontractor, materialman
material supplier, or laborer may at any time serve on any mortgagee a
written request
demanding to know the exact balance of the mortgage fund in his the
mortgagee's possession and the aggregate amount included in the notices
filed
with the mortgagee at the time of the receipt of such notice. The mortgagee
shall correctly inform the person serving the
notice of the exact balance and the aggregate amount included in
the notices filed. If the mortgagee fails to inform the original
contractor, subcontractor, materialman material supplier, or
laborer serving the
written demand of the exact balance of the mortgage fund in his the
mortgagee's possession at the time of the receipt of the notice, the
mortgagee is liable to the original contractor, subcontractor,
materialman material supplier, and laborer making such demand, each
time he the mortgagee fails to comply with such demand, in the
sum of one hundred dollars. This section, as to mortgages contemplated by this section,
controls over all other sections of the Revised Code relating to
mechanic's, materialmen's material supplier's, contractor's,
subcontractor's, laborer's, and all liens that can be had under this chapter,
and shall be liberally construed in favor of such mortgagees, a
substantial compliance by such mortgagees being sufficient.
Sec. 1311.15. (A) The lien of a subcontractor is superior
to any already taken or to be taken by the original contractor in
respect of the same labor, work, or material, and the liens of
laborers, materialmen material suppliers, and subcontractors to an
original contractor or subcontractor, are superior to any lien already
taken or to be taken by such original contractor or subcontractor
indebted to them in respect of such labor, work, or material. An
assignment or transfer by the original contractor or
subcontractor, of his the contract with the owner or original
contractor, as well as all proceedings in attachment, or
otherwise, against the original contractor or subcontractor, to
subject or encumber his the original contractor's or
subcontractor's interest in such contract, is subject to
the claims of every laborer, subcontractor, or materialman
material supplier who
performs any labor or work or furnishes any material in
furtherance of any improvement in accordance with this chapter. (B)(1) An owner, part owner, lessee, or public authority
may pay directly the claim of any subcontractor or materialman
material supplier
who serves a notice of furnishing pursuant to section 1311.05 or
1311.261 of the Revised Code, or the claim of any laborer. If
the owner, part owner, lessee, or public authority pays such
claim, he the owner, part owner, lessee, or public authority has
a right to a setoff or credit, in an amount equal
to the amount paid, against the original contractor or principal contractor
who employed the subcontractor, materialman material supplier, or
laborer paid by the owner, part owner, lessee, or public
authority under division (B)(1) of this section. (2) A principal contractor, an original contractor, or a
subcontractor may pay directly the claim of any subcontractor or
materialman material supplier who serves a notice of furnishing
pursuant to section
1311.05 or 1311.261 of the Revised Code, or the claim of any
laborer. If the A principal contractor, original contractor, or
subcontractor who pays such a claim, he has a right to a
setoff or
credit, in an amount equal to the amount paid, against the
subcontractor who employed the subcontractor, materialman
material supplier, or laborer paid by the principal contractor, original
contractor, or subcontractor under division (B)(2) of this section. (C) The failure of an original or principal contractor,
subcontractor, materialman material supplier, or laborer to
properly exercise his the rights under provided by
this chapter does not limit his the right to pursue any other
legal or equitable remedy.
Sec. 1311.25. As used in sections 1311.25 to 1311.32 of
the
Revised Code: (A) "Public improvement" means any construction,
reconstruction, improvement, enlargement, alteration, demolition,
or repair of a building, highway, drainage system, water system,
road, street, alley, sewer, ditch, sewage disposal plant, water
works, and any other structure or work of any nature by a public
authority. (B) "Public authority" includes the state, and a county,
township, municipal corporation, school district, or other
political subdivision of the state, and any public agency,
authority, board, commission, instrumentality, or special
district
of or in the state or a county, township, municipal
corporation,
school district, or other political subdivision of
the state, and
any officer or agent thereof. (C) "Materialman"
or "material Material supplier" includes any person
by whom
any materials are furnished in furtherance of a public
improvement. (D) "Laborer" includes any mechanic,
worker,
artisan,
or
other individual who performs labor or work in
furtherance of any
public improvement. (E) "Subcontractor" includes any person who undertakes to
construct, alter, erect, improve, repair, demolish, remove, dig,
or drill any part of any public improvement under a contract with
any person other than the public authority. (F) "Principal contractor" includes any person who
undertakes to construct, alter, erect, improve, repair, demolish,
remove, dig, or drill any part of any public improvement under a
contract with a public authority. (G) "Materials" means all products and substances
including,
without limitation, any gasoline, lubricating oil,
petroleum
products, powder, dynamite, blasting supplies and other
explosives, tools, equipment, or machinery furnished in
furtherance of a public improvement. (H) "Wages" has the same meaning as "prevailing wage" in
division (E) of section 4115.03 of the Revised Code. (I) "Notice of commencement" means the notice specified in
section 1311.252 of the Revised Code. (J) "Notice of furnishing" means the notice specified in
section 1311.261 of the Revised Code.
Sec. 1311.26. Any subcontractor, materialman material supplier, or
laborer who is performing or has performed labor or work or is furnishing
or has furnished material for any public improvement provided for
in a contract between the public authority and a principal
contractor, and under a contract between the subcontractor,
materialman material supplier, or laborer and a principal
contractor or
subcontractor, at any time, not to exceed one hundred twenty days
from the performance of the last labor or work or furnishing of
the last material, may serve the public authority an affidavit
stating the amount due and unpaid for the labor and work
performed and material furnished, when the last of the labor or
work was performed and when the last of the material was
furnished with all credits and setoffs thereon, and the
post-office address of the claimant. If a claimant serves an
affidavit under this section, he the claimant shall serve the
affidavit to the
representative of the public authority named in the notice of
commencement. One or more laborers may authorize an agent to prepare,
execute, file, and serve the affidavit required by this section.
The affidavit may set forth the claims of one or more laborers,
provided that the affidavit separately itemizes the claim of each
laborer and may set forth claims for wages that are contractually
due but are unpaid.
Sec. 1311.261. (A)(1) Every subcontractor and
materialman
material supplier who wishes to exercise
his
the subcontractor's
or
material supplier's rights under sections 1311.25 to
1311.32 of the
Revised Code regarding claims for labor or work
performed or
materials furnished in furtherance of a public
improvement shall
serve a notice of furnishing, in accordance
with division (B) of
this section, on the principal contractor
whose contract with the
public authority is the contract under
which the subcontractor or
materialman
material supplier is
performing labor or
work or
furnishing materials within twenty-one days after the
date that
the subcontractor or
materialman
material supplier first
performed
labor
or work or furnished materials on the site of the public
improvement, except that no subcontractor or
materialman
material supplier who is
in direct privity of contract with the
principal contractor need
provide the notice. (2) A subcontractor or
materialman
material supplier may serve
the
principal contractor with a notice of furnishing pursuant to
this section
more than twenty-one days after the subcontractor or
materialman
material supplier
first performed labor or work or
furnished materials on the site
of the public improvement. If a
subcontractor or
materialman
material supplier
serves the notice, the
subcontractor or
materialman
material supplier shall have
the rights
of sections 1311.25 to 1311.32 of the Revised Code
with regard to
only amounts owed for labor and work performed and
materials
furnished during and after the twenty-one days
immediately
preceding service of the notice of furnishing. (B) The notice of furnishing shall be in substantially the
following form: "Notice of Furnishing(For use in connection with public improvements)To: ............................................ (Name of principal contractor)................................................ Address of principal contractor)The undersigned notifies you that
he
the undersigned has
furnished or performed or will furnish or perform (describe labor,
work, or
materials) for the improvement of real property
identified as
(property description or address) under order given
by (name of
subcontractor or
materialman
material supplier). The
labor, work,
or materials
were first furnished or performed or
will be furnished or
performed on (date).
.......................................................(Signature of subcontractor or
materialman
material supplier).......................................................(Address of subcontractor or
materialman
material supplier).......................................................(Date)."(C) Each principal contractor and each subcontractor, on
the
date of entering into any agreement with a subcontractor or
materialman
material supplier, shall provide, in writing, to the
subcontractor or
materialman
material supplier, the name and address
of the public authority. (D) Each principal contractor and each subcontractor, on
the
date of entering into any agreement with a subcontractor or
materialman
material supplier, shall provide, in writing, to the
subcontractor or
materialman
material supplier, the name and address
of the principal contractor. (E) If the principal contractor or subcontractor fails to
provide the name and address of the public authority or the
principal contractor to those in direct privity of contract and
that failure results in the loss of rights under this section,
the
affected person may bring an action in any court of common
pleas
which would otherwise have jurisdiction over the action
against
the person who failed to furnish the information for any
damages
resulting from the loss of rights under this section. (F) No laborer must serve a notice in accordance with this
section to preserve lien rights under sections 1311.25 to 1311.32
of the Revised Code.
Sec. 1311.28. Upon receiving the affidavit required by
section 1311.26 of the Revised Code, the public authority shall
detain from the principal contractor or from the balance of the
funds remaining in the contract with the principal contractor, an
amount, up to the balance remaining in the contract, that does
not in the aggregate exceed the claim or claims. The public authority shall not detain any amount requested
by a claimant who is required by section 1311.261 of the Revised
Code to serve a notice of furnishing, unless the claimant has
provided to the public authority a copy of the notice of
furnishing and a sworn statement as to the date the notice of
furnishing was served to the principal contractor, or by a
claimant who is a laborer, unless the laborer serves an affidavit
upon the public authority pursuant to section 1311.26 of the
Revised Code. The public authority shall place any detained funds in an
escrow account as provided for under section 153.63 of the
Revised Code, to be released at the times, in the amounts, and to
the persons ordered by a court of competent jurisdiction or by
agreement of the principal contractor and the subcontractor,
materialman material supplier, or laborer who filed the affidavit
provided for in section 1311.26 of the Revised Code or upon a failure to
commence suit as provided in section 1311.311 of the Revised Code.
Sec. 1311.29. A subcontractor, materialman material supplier,
laborer, or person who serves the affidavit pursuant to section 1311.26 of
the Revised Code, in order to notify other subcontractors,
materialmen material suppliers, and laborers, within thirty days thereafter, shall
file for record a copy of the affidavit with the county recorder
of the county where the public improvement is situated or with
the county recorder of each of the counties where the public
improvement is situated if the public improvement is situated in
more than one county. The filing for record of the affidavit
with the county recorders gives such subcontractor, materialman material supplier,
laborer, or person filing the affidavit as provided in section
1311.26 of the Revised Code, a preference, as to payments
subsequently due from the public authority, over such of his the
other subcontractors, materialmen material suppliers, and laborers
who have failed, prior to the date any such payment is due, to file the
affidavit
provided for in section 1311.26 of the Revised Code, and to file
for record the copy thereof with the county recorders as provided
in this section. On detained funds, such claimants have no
priority among themselves, but payment thereon shall be made to
them in amounts prorated according to the amount of the
then-existing valid claim of each. The failure of any claimant
to file for record a copy of the affidavit with the county
recorders does not affect the validity of his the claimant's
amount claimed with respect to persons other than such of his the
claimant's other subcontractors,
materialmen material suppliers, and laborers who have filed for
record copies of
their affidavits with the county recorders, and, against detained
funds, such claimants who have failed to make such filing for
record with the county recorders have no priority among
themselves, but, after all claims having preference over theirs
have been paid, payment shall be made to them in amounts prorated
according to the amount of the then-existing valid claim of each. The recorder shall endorse upon every affidavit the date
and hour of its filing, and record every affidavit filed for
record. For recording or making a copy of the affidavit or
certificate of the date of such filing for record, the recorder
is entitled to the same fees as are provided for in section
317.32 of the Revised Code.
Sec. 1311.32. The duty to pay to claimants the amounts and
in the order of preference, as provided in sections 1311.29 and
1311.31 of the Revised Code, may be enforced by an action in the
court of common pleas or the subcontractor, materialman
material supplier, or laborer may, when the amounts are due, recover
through the public
authority in the court of common pleas the whole or a pro rata
amount of his the subcontractor's, material supplier's, or
laborer's claim or estimate, not exceeding in any case the balance due to
the principal contractor. Either of these actions
shall be brought in the county in which the public property
involved is situated, except that actions against state officers
shall be brought only in Franklin county. The court shall
resolve all disputes concerning whether the affidavit filed
pursuant to section 1311.26 of the Revised Code has been
perfected and concerning priorities, that may arise from
enforcement of the affidavit or the bond that secures the
affidavit, pursuant to section 1311.311 of the Revised Code.
Sec. 4113.61. (A)(1) If a subcontractor or materialman material supplier
submits an application or request for payment or an invoice for
materials to a contractor in sufficient time to allow the
contractor to include the application, request, or invoice in his
the contractor's
own pay request submitted to an owner, the contractor, within ten
calendar days after receipt of payment from the owner for
improvements to property, shall pay to the: (a) Subcontractor, an amount that is equal to the
percentage of completion of the subcontractor's contract allowed
by the owner for the amount of labor or work performed; (b) Materialman Material supplier, an amount that is equal to
all or that
portion of the invoice for materials which represents the
materials furnished by the materialman material supplier. The contractor may reduce the amount paid by any retainage
provision contained in the contract, invoice, or purchase order
between the contractor and the subcontractor or materialman
material supplier, and
may withhold amounts that may be necessary to resolve disputed
liens or claims involving the work or labor performed or material
furnished by the subcontractor or materialman material
supplier. If the contractor fails to comply with division (A)(1) of
this section, the contractor shall pay the subcontractor or
materialman material supplier, in addition to the payment due,
interest in
the
amount of eighteen per cent per annum of the payment due,
beginning on the eleventh day following the receipt of payment
from the owner and ending on the date of full payment of the
payment due plus interest to the subcontractor or materialman
material supplier. (2) If a lower tier subcontractor or lower tier
materialman material supplier submits an application or request
for payment or an
invoice for materials to a subcontractor, materialman material
supplier, or other
lower tier subcontractor or lower tier materialman material
supplier in sufficient
time to allow the subcontractor, materialman material supplier,
or other lower tier
subcontractor or lower tier materialman material supplier to
include the
application, request, or invoice in his the subcontractor's,
material supplier's, or other lower tier subcontractor's or lower tier
material supplier's own pay request submitted
to a contractor, other subcontractor, materialman material
supplier, lower tier
subcontractor, or lower tier materialman material supplier, the
subcontractor,
materialman material supplier, or other lower tier
subcontractor or lower tier
materialman material supplier, within ten calendar days after
receipt of payment
from the contractor, other subcontractor, materialman material
supplier, lower tier
subcontractor, or lower tier materialman material supplier for
improvements to
property, shall pay to the: (a) Lower tier subcontractor, an amount that is equal to
the percentage of completion of the lower tier subcontractor's
contract allowed by the owner for the amount of labor or work
performed; (b) Lower tier materialman material supplier, an amount that
is equal to all
or that portion of the invoice for materials which represents the
materials furnished by the lower tier materialman material
supplier. The subcontractor, materialman material supplier, lower tier
subcontractor,
or lower tier materialman material supplier may reduce the
amount paid by any
retainage provision contained in the contract, invoice, or
purchase order between the subcontractor, materialman material
supplier, lower tier
subcontractor, or lower tier materialman material supplier and
the lower tier
subcontractor or lower tier materialman material supplier, and
may withhold amounts
that may be necessary to resolve disputed liens or claims
involving the work or labor performed or material furnished by
the lower tier subcontractor or lower tier materialman material
supplier. If the subcontractor, materialman material supplier, lower tier
subcontractor, or lower tier materialman material supplier
fails to comply with
division (A)(2) of this section, the subcontractor, materialman
material supplier,
lower tier subcontractor, or lower tier materialman material
supplier shall pay the
lower tier subcontractor or lower tier materialman material
supplier, in addition
to the payment due, interest in the amount of eighteen per cent
per annum of the payment due, beginning on the eleventh day
following the receipt of payment from the contractor, other
subcontractor, materialman material supplier, lower tier
subcontractor, or lower
tier materialman material supplier and ending on the date of
full payment of the
payment due plus interest to the lower tier subcontractor or
lower tier materialman material supplier. (3) If a contractor receives any final retainage from the
owner for improvements to property, the contractor shall pay from
that retainage each subcontractor and materialman his material
supplier the subcontractor's or material supplier's proportion
of the retainage, within ten calendar days after receipt of the
retainage from the owner, or within the time period provided in a
contract, invoice, or purchase order between the contractor and
the subcontractor or materialman material supplier, whichever
time period is
shorter, provided that the contractor has determined that the
subcontractor's or materialman's material supplier's work,
labor, and materials have
been satisfactorily performed or furnished and that the owner has
approved the subcontractor's or materialman's material
supplier's work, labor, and
materials. If the contractor fails to pay a subcontractor or
materialman material supplier within the appropriate time
period, the contractor
shall pay the subcontractor or materialman material supplier,
in addition to the
retainage due, interest in the amount of eighteen per cent per
annum of the retainage due, beginning on the eleventh day
following the receipt of the retainage from the owner and ending
on the date of full payment of the retainage due plus interest to
the subcontractor or materialman material supplier. (4) If a subcontractor, materialman material supplier, lower
tier
subcontractor, or lower tier materialman material supplier
receives any final
retainage from the contractor or other subcontractor, lower tier
subcontractor, or lower tier materialman material supplier for
improvements to
property, the subcontractor, materialman material supplier,
lower tier
subcontractor, or lower tier materialman material supplier
shall pay from that
retainage each lower tier subcontractor or lower tier materialman
his the lower tier subcontractor's or lower tier material
supplier's proportion of the retainage, within ten calendar days after
receipt of payment from the contractor or other subcontractor,
lower tier subcontractor, or lower tier materialman material
supplier, or within
the time period provided in a contract, invoice, or purchase
order between the subcontractor, materialman material supplier,
lower tier
subcontractor, or lower tier materialman material supplier and
the lower tier
subcontractor or lower tier materialman material supplier,
whichever time period is
shorter, provided that the subcontractor, materialman material
supplier, lower tier
subcontractor, or lower tier materialman material supplier has
determined that the
lower tier subcontractor's or lower tier materialman's material
supplier's work,
labor, and materials have been satisfactorily performed or
furnished and that the owner has approved the lower tier
subcontractor's or lower tier materialman's material supplier's
work, labor, and
materials. If the subcontractor, materialman material supplier, lower tier
subcontractor, or lower tier materialman material supplier
fails to pay the lower
tier subcontractor or lower tier materialman material supplier
within the
appropriate time period, the subcontractor, materialman material
supplier, lower
tier subcontractor, or lower tier materialman material supplier
shall pay the lower
tier subcontractor or lower tier materialman material supplier,
in addition to the
retainage due, interest in the amount of eighteen per cent per
annum of the retainage due, beginning on the eleventh day
following the receipt of the retainage from the contractor or
other subcontractor, lower tier subcontractor, or lower tier
materialman material supplier and ending on the date of full
payment of the
retainage due plus interest to the lower tier subcontractor or
lower tier materialman material supplier. (5) A contractor, subcontractor, or lower tier
subcontractor shall pay a laborer wages due within ten days of
payment of any application or request for payment or the receipt
of any retainage from an owner, contractor, subcontractor, or
lower tier subcontractor. If the contractor, subcontractor, or lower tier
subcontractor fails to pay the laborer wages due within the
appropriate time period, the contractor, subcontractor, or lower
tier subcontractor shall pay the laborer, in addition to the
wages due, interest in the amount of eighteen per cent per annum
of the wages due, beginning on the eleventh day following the
receipt of payment from the owner, contractor, subcontractor, or
lower tier subcontractor and ending on the date of full payment
of the wages due plus interest to the laborer. (B)(1) If a contractor, subcontractor, materialman material
supplier, lower
tier subcontractor, or lower tier materialman material supplier
has not made
payment in compliance with division (A)(1), (2), (3), (4), or (5)
of this section within thirty days after payment is due, a
subcontractor, materialman material supplier, lower tier
subcontractor, lower tier
materialman material supplier, or laborer may file a civil
action to recover the
amount due plus the interest provided in those divisions. If the
court finds in the civil action that a contractor, subcontractor,
materialman material supplier, lower tier subcontractor, or
lower tier materialman material supplier
has not made payment in compliance with those divisions, the
court shall award the interest specified in those divisions, in
addition to the amount due. Except as provided in division
(B)(3) of this section, the court shall award the prevailing
party reasonable attorney fees and court costs. (2) In making a determination to award attorney fees under
division (B)(1) of this section, the court shall consider all
relevant factors, including but not limited to the following: (a) The presence or absence of good faith allegations or
defenses asserted by the parties; (b) The proportion of the amount of recovery as it relates
to the amount demanded; (c) The nature of the services rendered and the time
expended in rendering the services. (3) The court shall not award attorney fees under division
(B)(1) of this section if the court determines, following a
hearing on the payment of attorney fees, that the payment of
attorney fees to the prevailing party would be inequitable. (C) This section does not apply to any construction or
improvement of any single-, two-, or three-family detached
dwelling houses. (D)(1) No provision of this section regarding entitlement
to interest, attorney fees, or court costs may be waived by
agreement and any such term in any contract or agreement is void
and unenforceable as against public policy. (2) This section shall not be construed as impairing or
affecting, in any way, the terms and conditions of any contract,
invoice, purchase order, or any other agreement between a
contractor and a subcontractor or a materialman material
supplier or between a
subcontractor and another subcontractor, a materialman material
supplier, a lower
tier subcontractor, or a lower tier materialman material supplier, except that if
such terms and conditions contain time periods which are longer
than any of the time periods specified in divisions (A)(1), (2),
(3), (4), and (5) of this section or interest at a percentage
less than the interest stated in those divisions, then the
provisions of this section shall prevail over such terms and
conditions. (E) Notwithstanding the definition of lower tier
materialman material supplier in this section, a person is not
a lower tier
materialman material supplier unless the materials supplied by
him the person are: (1) Furnished with the intent, as evidenced by the
contract of sale, the delivery order, delivery to the site, or by
other evidence that the materials are to be used on a particular
structure or improvement; (2) Incorporated in the improvement or consumed as normal
wastage in the course of the improvement; or (3) Specifically fabricated for incorporation in the
improvement and not readily resalable in the ordinary course of
the fabricator's business even if not actually incorporated in
the improvement. (F) As used in this section: (1) "Contractor" means any person who undertakes to
construct, alter, erect, improve, repair, demolish, remove, dig,
or drill any part of a structure or improvement under a contract
with an owner, or a "construction manager" as that term is
defined in section 9.33 of the Revised Code. (2) "Laborer," "materialman material supplier,"
"subcontractor," and "wages"
have the same meanings as in section 1311.01 of the Revised Code. (3) "Lower tier subcontractor" means a subcontractor who
is not in privity of contract with a contractor but is in privity
of contract with another subcontractor. (4) "Lower tier materialman material supplier" means a
materialman material supplier who is
not in privity of contract with a contractor but is in privity of
contract with another subcontractor or a materialman material
supplier. (5) "Wages due" means the wages due to a laborer as of the
date a contractor or subcontractor receives payment for any
application or request for payment or retainage from any owner,
contractor, or subcontractor. (6) "Owner" includes the state, and a county, township,
municipal corporation, school district, or other political
subdivision of the state, and any public agency, authority,
board, commission, instrumentality, or special district of or in
the state or a county, township, municipal corporation, school
district, or other political subdivision of the state, and any
officer or agent thereof and relates to all the interests either
legal or equitable, which a person may have in the real estate
upon which improvements are made, including interests held by any
person under contracts of purchase, whether in writing or
otherwise.
Sec. 4740.01. As used in this chapter: (A) "License" means a
license
the Ohio
construction industry licensing board issues to an
individual as a
heating, ventilating, and air
conditioning contractor,
refrigeration contractor, electrical
contractor, plumbing
contractor, or hydronics contractor. (B) "Contractor"
means any individual or business entity that satisfies both of the
following: (1) For
compensation, directs, supervises, or has
responsibility for the means,
method, and manner of construction,
improvement,
renovation, repair, testing, or maintenance on a construction project with respect to one or more trades
and
who
offers, identifies, advertises, or otherwise
holds out or
represents that
the
individual or business entity is permitted or
qualified to
perform, direct, supervise, or have responsibility
for the means, method,
and
manner of
construction,
improvement, renovation, repair, or
maintenance with respect to one or more trades on a construction project; (2) Performs or employs tradespersons who perform
construction,
improvement, renovation, repair, or
maintenance on a construction project with respect to the contractor's trades. (C)
"Licensed trade" means a trade performed by a heating, ventilating, and air
conditioning contractor, a refrigeration contractor, an
electrical
contractor, a plumbing contractor, or a hydronics
contractor. (D) "Tradesperson" means an individual employed by a contractor who,
for
compensation, engages in
construction, improvement, renovation,
repair, or maintenance of
buildings or structures without assuming
responsibility for the
means, method, or manner of that
construction, improvement,
renovation, repair, or maintenance. (E) "Construction project" means a construction project
involving
a building or structure subject to
Chapter 3781.
of the Revised Code
and the rules adopted under that chapter, but
not
an industrialized unit or a residential building as defined in
section 3781.06 of the Revised Code.
Sec. 4740.04. The administrative section of the Ohio
construction industry licensing board is responsible for the
administration of this chapter and shall do all of the following: (A) Schedule the contractor examinations
each of the other sections of the board directs.
Each type of examination shall be held
at least four times per year. (B) Select and contract with one or more persons to do all
of
the following relative to the examinations: (1) Prepare, administer, score, and maintain the
confidentiality of the examinations; (2) Be responsible for all the expenses required to
fulfill
division (B)(1) of this
section; (3) Charge an applicant a fee in an amount
the administrative section of the board authorizes for administering the
examination; (4) Design the examination for each type of contractor to
determine an applicant's competence to perform that type of
contracting. (C) Issue and renew
licenses to
individuals who
have
attained at least the minimum score on an examination
that the appropriate section authorizes for the licensed trade. Hydronics contractors shall pass the examinations for both the plumbing section and the heating, ventilating, air conditioning, and refrigeration section. The appropriate section shall determine whether the individual
also is qualified as required by section
4740.06 of the
Revised Code to hold a license as follows:
(1) Issue a license to any individual who the appropriate section of the board determines is qualified pursuant to section 4740.06 of the Revised Code to hold a license and has attained a score on the examination that the appropriate section authorizes for the licensed trade. (a) Each license shall include a license number and an expiration date.
(b) Each license issued to an individual who holds more than one valid license shall contain the same license number and expiration date as the original license issued to that individual.
(2) Renew licenses for individuals who meet the renewal requirements of section 4740.06 of the Revised Code. (D) Make an annual written report to the director of
commerce on proceedings had by or before the board
for the
previous year and make an annual statement of all money
received
and expended by the board during the year; (E) Keep a record containing the name, address, the date
on
which the board issues or renews a
license
to, and the license
number of, every
heating,
ventilating, and air conditioning
contractor, refrigeration
contractor, electrical contractor,
plumbing contractor, and
hydronics contractor issued a license
pursuant
to this chapter; (F) Regulate a contractor's use and display of a license
issued pursuant to this chapter and of any information contained
in that license; (G) Adopt rules in accordance with
Chapter 119. of the
Revised
Code as necessary to properly
discharge the administrative
section's duties under this
chapter. The rules shall include, but not be limited to, the following: (1) Application procedures for examinations; (2) Specifications for continuing education requirements for license renewal that address all of the following: (a) Criteria for continuing education courses conducted pursuant to this chapter; (b) A requirement that individuals holding a an individual who holds any number of valid and unexpired license licenses accrue a total of ten hours of continuing education courses per year;
(c) A requirement that persons seeking approval to provide continuing education courses submit the required information to the appropriate section of the board at least thirty days, but not more than one year, prior to the date on which the course is proposed to be offered;
(d) A prohibition against any person providing a continuing education course unless the administrative section of the board approved that person not more than one year prior to the date the course is offered;
(e)(b) Fees the board charges to persons who provide continuing education courses, in an amount of twenty-five dollars annually for each person approved to provide courses, not more than ten dollars plus one dollar per credit hour for each course offered, and one dollar per credit hour of instruction per attendee;
(f)(c) A provision limiting approval of continuing education courses to one year.
(H) Adopt any continuing education curriculum as the other sections of the board establish or approve pursuant to division (C) of section 4740.05 of the Revised Code;
(I)
Grant approval to a person or entity to offer continuing education courses pursuant to rules the board adopts; (J) Keep a record of its proceedings and do all things
necessary to carry out this chapter.
Sec. 4740.05. (A) Each section of the Ohio construction industry
licensing board, other than the administrative section, shall do all of the following: (1) Adopt rules in accordance with Chapter 119. of the
Revised Code that are limited to the following: (a) Criteria for the section to use in
evaluating the qualifications of an individual; (b) Criteria for the section to use in
deciding
whether to authorize the administrative section to issue, renew, suspend, revoke, or refuse to
issue or
renew a license; (c) The determinations and approvals the section makes under the
reciprocity
provision of section 4740.08 of the Revised Code;
(d) Criteria for continuing education courses conducted pursuant to this chapter;
(e) A requirement that persons seeking approval to provide continuing education courses submit the required information to the appropriate section of the board at least thirty days, but not more than one year, prior to the date on which the course is proposed to be offered;
(f) A prohibition against any person providing a continuing education course unless the administrative section of the board approved that person not more than one year prior to the date the course is offered. (2) Investigate allegations in reference to violations
of
this chapter and the rules adopted pursuant to
it that pertain to the
section and
determine by rule a procedure to conduct investigations
and hearings on
these allegations; (3) Maintain a record of its proceedings; (4) Grant approval to a person to offer continuing education courses pursuant to rules the board adopts; (5) As required, do all things
necessary to carry out this
chapter.
(B) In accordance with rules they establish, the trade sections of the board shall authorize the administrative section to issue, renew, suspend, revoke, or refuse to issue or renew licenses for the classes of contractors for which each has primary responsibility as set forth in section 4740.02 of the Revised Code. (C) Each trade section of the board shall establish or approve a continuing education curriculum for license renewal for each class of contractors for which the section has primary responsibility. No curriculum may require that more than five hours out of the ten total required per year be in specific course requirements. No contractor may be required to take more than ten hours per year in continuing education courses. The ten hours shall be the aggregate of hours of continuing education for all licenses the contractor holds.
Sec. 4740.06. (A) Any individual who applies for
a
license
shall file a written
application with
the appropriate
section of
the Ohio construction industry
licensing board,
accompanied with
the application fee as determined pursuant to
section
4740.09 of
the Revised Code. The individual shall file
the
application not more than sixty
days
nor less than
thirty days prior to the date of the
examination.
The application
shall be on the form the section prescribes and verified by the
applicant's
oath. The applicant shall provide
information satisfactory to
the
section showing that
the applicant meets the
requirements of division (B) of this
section. (B) To qualify to take
an examination, an individual shall: (1) Be at least eighteen years of age; (2) Be a United States citizen or legal alien who produces valid documentation to demonstrate the individual is a legal resident of the United States; (3) Either have been a tradesperson
in the type of
licensed trade for which the application is filed
for not less than
five years immediately prior to the date the
application is filed,
be an a currently registered engineer, have in this state with three years of
business experience in the
construction industry in the trade for which the engineer is applying to take an examination, or have other
experience acceptable to the appropriate
section of the board; (4) Maintain contractor's liability insurance, including
without limitation, complete operations coverage, in an amount
the appropriate section of the board determines; (5) Not have done any of the following: (a) Been convicted of or pleaded
guilty to a misdemeanor
involving moral turpitude or of any
felony; (b) Violated this chapter or any rule
adopted pursuant to
it; (c) Obtained or renewed a license
issued pursuant to this
chapter, or any order, ruling, or
authorization of the board or a
section of the board by fraud,
misrepresentation, or deception; (d) Engaged in fraud,
misrepresentation, or deception in the
conduct of
business. (C) When an applicant for licensure as a contractor in a licensed trade meets the qualifications set
forth in
division (B) of this section and passes the required examination,
the
appropriate section of the
board, within ninety days after the
application was filed, shall authorize the
administrative section of the board
to
license the applicant for
the
type of contractor's license for which
the applicant
qualifies. A section of the board may withdraw its
authorization
to
the administrative section for issuance of a license for
good
cause shown, on the condition that notice of that
withdrawal is
given prior to the administrative section's
issuance of the
license. (D) Each license expires one year
after the date of issue. All licenses a contractor holds pursuant to this chapter shall expire annually on the same date, which shall be the expiration date of the original license the contractor holds. An
individual
holding a valid,
unexpired license may
renew
the license, without reexamination,
by submitting an application
to the
appropriate section of the board not more than
ninety calendar
days before the
expiration of the license, along with the renewal fee the section requires and proof of compliance with
the applicable continuing
education requirements. The applicant shall provide information in the renewal application
satisfactory to demonstrate to the appropriate section
that
the applicant continues to meet the requirements of
division (B)
of this
section. Upon application and within one calendar year after a license has expired, a section may waive any of the
requirements for renewal of a license upon finding that an
applicant substantially meets the renewal requirements or
that
failure to timely apply for renewal is due to excusable
neglect.
A section that
waives
requirements for renewal of a license may impose
conditions upon
the licensee and assess a late filing
fee of not more than double
the usual renewal fee. An applicant shall satisfy any condition the section imposes before a license is reissued. (E) An individual
holding a valid license may
request the
section of the board that authorized
that
license to place the license in inactive status under
conditions, and for a period of time, as that
section
determines. (F) Except for the
ninety-day extension provided for a license assigned to a business entity under
division
(D) of section 4740.07 of the
Revised
Code, a license
held by an
individual immediately terminates upon the death of the
individual. (G) Nothing in any license issued by the Ohio
construction
industry licensing board shall be construed to limit or eliminate
any requirement of or any license issued by the Ohio fire marshal.
Sec. 4740.07. (A) Except as otherwise provided in this section, the
administrative section of the Ohio construction industry
licensing
board shall issue and renew all licenses under this
chapter in
the
name of the individual who meets the
requirements of
section
4740.06 of the
Revised Code. (B) Any individual may request, at the time of applying
for
a
license or at any time thereafter,
that the individual's
license be
assigned to
a business
entity with whom the individual
is associated as a full-time
officer,
proprietor, partner, or
employee. If the individual is
issued or
holds a license and
meets the
requirements of
this section for the assignment of
the
license to a business entity, the
administrative section shall
assign the license to and issue
a license in the
name of
the
business entity. The license
assigned and
issued to a business
entity under this division shall state the
name and position of
the individual who assigned the
license to the business entity. (C) During the period a business entity holds a license
issued under division
(B) of this
section, the administrative
section shall not issue another license to the individual who
assigned the
license to the
business entity
for the same type
of contracting for which the business entity utilizes the assigned
license. (D)(1) If an individual who assigned a
license to a
business entity
ceases to be associated with the business entity
for any reason, including the death of the
individual,
the individual or business entity immediately
shall
notify the appropriate section of the board of the date on which
the individual ceased to be associated
with the business entity. A
license assigned to
a
business entity is invalid ninety calendar days after
the
date on which the individual who assigned the license
ceases
to be associated with the business entity or at an earlier time to which the business entity and the individual agree. (2) If a license assigned to a business entity
becomes
invalid pursuant to division
(D)(1) of this section and
another
individual has assigned a license to the business
entity for the
same type of contracting for which the
invalidated license had
been assigned, the business entity
may continue to operate under
the other assigned
license. (E) Any work a business entity conducts under a
license
assigned under this section is
deemed
to be conducted under the
personal supervision of the
individual
named in the license and
any violation of any
term of the license is
deemed
to have
been committed by the individual
named in the license. For the period of time during which more than one
license for
the same type of contracting is assigned to a
business entity, any work the
business entity conducts under
any of those licenses is deemed to be
conducted under the personal
supervision of the individuals
named in those licenses and
any violation of any
term of any license is deemed to
have been
committed by the individuals named in all of the
licenses. (F) No individual who assigns a
license to a business
entity shall assign a
license
for the same type of contracting
to
another business entity
until
after
ninety days after the
individual ceases
to be associated
with the
business entity to
which the individual had
assigned a license the original license assigned is invalid pursuant to division (D) of this section. (G) Any individual who assigns a
license to a business
entity under this section shall
be
actively engaged in business
as the type of contractor for
which the license is issued and be
readily available for
consultation
with the business entity to
which the
license
is assigned. (H) No license assigned under this
section shall be
assigned to more than one business
entity at a time.
Sec. 4740.08. When a written reciprocity agreement between the states exists, and an individual who is registered, licensed, or certified in another state applies to the appropriate section
of
the Ohio construction industry licensing board submits a copy of the reciprocity agreement, and pays
the licensure
fee determined pursuant to section 4740.09 of
the Revised Code, the appropriate
section
of the
board shall authorize the administrative section
to
issue, without examination, a
license to that
individual
if the appropriate section of the
board
determines, pursuant to rules it adopts, that the
requirements for
registration, licensure, or certification under
the laws of the
other state are
substantially equal to the
requirements for licensure in this state and
that
the other state extends similar reciprocity to persons
licensed under this chapter.
The appropriate
section of the board
may withdraw its
authorization to the administrative section for
issuance of a
license for good cause prior to the
administrative
section's issuance of the license.
Sec. 4740.101. On receipt of a notice pursuant to section
3123.43 of the Revised Code, the construction
industry
licensing board shall
comply with
sections 3123.41 to 3123.50 of the Revised Code and any applicable rules adopted under
section 3123.63 of the Revised Code
with respect to a certificate license issued pursuant to this
chapter.
Sec. 4740.12. Nothing (A) No political subdivision, district, or agency of the state may adopt an ordinance or rule that requires contractor registration and the assessment of a registration or license fee unless that ordinance or rule also requires any contractor who registers and pays the registration or license fee to be licensed in the contractor's trade pursuant to this chapter.
(B) Except as provided in division (A) of this section, nothing in this chapter shall be construed
to limit
the operation of any statute or rule of this state or any
ordinance or rule of any political subdivision, district, or
agency of the state that does either of the following: (A)(1) Regulates the installation, repair, maintenance, or
alteration of plumbing systems, hydronics systems, electrical systems, heating,
ventilating, and air conditioning systems, or refrigeration
systems;
(B)(2) Requires the registration and assessment of a
registration or license fee of tradespersons who perform heating,
ventilating, and air
conditioning,
refrigeration, electrical,
plumbing, or hydronics
construction, improvement, renovation,
repair, or maintenance.
Sec. 4740.15. If a check or other draft instrument used to pay any fee required by this chapter is returned as unpaid for insufficient funds or any other reason, the board secretary shall notify the licensee that the check or other draft instrument was returned and that the licensee's license will be canceled unless the licensee, within fifteen days after the mailing of the notice, submits the fee and a penalty in an amount the board establishes by rules it adopts pursuant to Chapter 119. of the Revised Code. If the licensee does not submit the fee and the penalty within the time specified, or if any check or other draft instrument used to pay either the fee or the penalty is returned to the board secretary for insufficient funds or any other reason, the license shall be canceled immediately without a hearing and the licensee shall cease activity as a licensee under this chapter until both the fee and the penalty have been paid.
Sec. 5309.57. Whenever any attested account to obtain a mechanic's,
materialman's material supplier's, or laborer's lien is filed in
the office of the county recorder
by which a lien is sought to be obtained upon any registered land, the county
recorder shall forthwith make notation and enter a memorial thereof upon the
folium of the register where the last certificate of title to the land is
registered, stating the name of the claimant, amount claimed, volume and
folium
of the record where recorded, and the exact time when said memorial was
entered. No lien shall attach to said land until such notation is entered by
the recorder. The recorder may, upon written application of the registered owner, cancel from
any certificate of title, a mechanic's lien which has remained uncanceled for
six years and one day from the date of registration of said lien, provided that
no notice of any suit affecting said lien has been noted upon the register.
Sec. 5525.16. (A) Before entering into a contract, the
director of transportation shall require a contract performance
bond and a payment bond with sufficient sureties, as follows: (1) A contract performance bond in an amount equal to one
hundred per cent of the estimated cost of the work, conditioned,
among other things, that the contractor will perform the work
upon the terms proposed, within the time prescribed, and in
accordance with the plans and specifications, will indemnify the
state against any damage that may result from any failure of the
contractor to so perform, and, further, in case of a grade
separation will indemnify any railroad company involved against
any damage that may result by reason of the negligence of the
contractor in making the improvement. (2) A payment bond in an amount equal to one hundred per
cent of the estimated cost of the work, conditioned for the
payment by the contractor and all subcontractors for labor or
work performed or materials furnished in connection with the
work, improvement, or project involved. (B) In no case is the state liable for damages sustained
in the construction of any work, improvement, or project under
this chapter and Chapters 5501., 5503., 5511., 5513., 5515.,
5516., 5517., 5519., 5521., 5523., 5527., 5528., 5529., 5531.,
5533., and 5535. of the Revised Code. This section does not require the director to take bonds as
described in division (A) of this section in connection with any
force account work, but the director may require those bonds
in connection with force account work. If any bonds taken under this section are executed by a
surety company, the director may not approve such bonds unless
there is attached a certificate of the superintendent of
insurance that the company is authorized to transact business in
this state, and a copy of the power of attorney of the agent of
the company. The superintendent, upon
request, shall issue to any licensed agent of such company the
certificate without charge. The bonds required to be taken under this section shall be
executed by the same surety, approved by the director as to
sufficiency of the sureties, and be in the form prescribed by the
attorney general. (C) Any person to whom any money is due for labor or work
performed or materials furnished in connection with a work,
improvement, or project, at any time after performing the
labor or furnishing the materials but not later than ninety days
after the acceptance of the work, improvement, or project by the
director, may furnish to the sureties on the payment bond a statement
of the amount due the person. If the indebtedness is not paid in
full at the expiration of sixty days after the statement is
furnished, the person may commence an action in the person's
own name upon the bond as provided in sections 2307.06 and 2307.07 of the
Revised Code. An action shall not be commenced against the sureties on a
payment bond until sixty days after the furnishing of the
statement described in this section or, notwithstanding section
2305.12 of the Revised Code, later than one year after the date
of the acceptance of the work, improvement, or project. (D) As used in this section, "improvement,"
"subcontractor," "materialman material supplier," and "materials" have the same
meanings as in section 1311.01 of the Revised Code, and
"contractor" has the same meaning as "original contractor" as
defined in that section.
Section 2. That existing sections 153.54, 153.57, 1311.01, 1311.011, 1311.02, 1311.021, 1311.03, 1311.04, 1311.05, 1311.12, 1311.13, 1311.14, 1311.15, 1311.25, 1311.26, 1311.261, 1311.28, 1311.29, 1311.32, 4113.61, 4740.01, 4740.04, 4740.05, 4740.06, 4740.07, 4740.08, 4740.101, 4740.12, 5309.57, and 5525.16 of the Revised Code are hereby repealed.
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