If you or your company is experiencing a payment issue on a construction project, filing a mechanics lien should be a last resort. If there’s another option for recovering payment – such as sending a Notice of Intent to Lien or maybe even just having a conversation – resolving a construction payment dispute another way is usually preferable to filing a lien.
On the other hand, sometimes a lien is necessary. Thankfully, lien rights are available to those in the construction industry in all 50 states, including the great state of Ohio. If and when filing a lien becomes necessary, claimants need to know exactly how that’s done.
On that note, let’s look at how to file an Ohio mechanics lien.
Before Filing an Ohio Mechanics Lien
Before filing a mechanics lien, it’s important to follow all of the necessary notice requirements.
Depending on the project, this process can vary. On some projects, there will be a Notice of Commencement (usually by the GC or the project owner) filed with the county clerk, stating the scope for the project for public record. If the Notice of Commencement is filed, then potential claimants must send the property owner a Notice of Furnishing in order to maintain their right to file a lien.
If no Notice of Commencement is filed or required, sending notice is unnecessary to preserve lien rights. However, it’s still a best practice to send preliminary notice on all of your construction projects, even when the notice is not required.
For more information on Ohio notices or other pre-requisites to filing an Ohio lien, check out our Ohio Lien and Notice FAQ and this article: Ohio Notice of Furnishing: The Why, Who, What, When, and How.
Information to Include in the Lien Form
Ohio makes things easy. Like a number of other states, there’s a form for an Ohio mechanics lien built right into the text of the Ohio mechanics lien law. The lien form, called an “Affidavit for Mechanics Lien,” must include the following information, among other info:
- The amount of the claim
- Legal description of the property subject to the lien
- Name and address of the person for whom work was performed or materials provided (i.e. the claimant’s customer)
- Name and address of the property owner
- Name and address of the lien claimant
- First and last dates work was performed or materials were supplied
Here’s that Ohio statutory lien form, copy and pasted straight from the statute. Click the link below to download zlien‘s PDF version.
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An Affidavit of Mechanics Lien must be notarized according to the Ohio law. Once it’s properly filled out and notarized, the affidavit must be filed in the county clerk’s office in the county where the improved property is located.
It’s also important to keep an eye on your timelines. The deadline to file an affidavit depends on the type of project you are on. For a residence up to 2 units, the affidavit must be filed within 60 days from the last day work was performed or materials were supplied. For all other projects, the timeline to file is 75 days from last furnishing.
Post Filing Procedure
Once a lien is properly recorded in the county clerk’s office, the lien claimant has 30 days to serve a copy of the affidavit to the property owner. Without this service, the lien will not be effective. But that’s not the end of the story, and that doesn’t mean payment is guaranteed.
While many see a foreclosure suit as the next step after a lien filing, we like to suggest that there’s another step that should come before the foreclosure lawsuit. Enter: the Notice of Intent to Foreclose.
It’s not a required document, but a Notice of Intent to Foreclose can be a strong move to compel payment. Essentially, it states that if the lien isn’t paid and paid soon, the mechanics lien will be enforced. Considering the drastic nature of foreclosure suits, property owners typically want to avoid them.
If the issue is still not resolved, it’s time to file a lawsuit to foreclose on the lien. In Ohio, you typically have 6 years to file the lawsuit, unless the property owner takes action before then. If the property owner files a Notice to Commence Suit, the deadline to file a lawsuit to foreclose shrinks to only 60 days! If you miss that deadline, your lien rights are extinguished.
By following these steps and adhering to the timelines, Ohio mechanics lien claimants will be in a good position to get paid what they’ve earned!