Sometimes it can be difficult to pinpoint the start date of a construction project, but this problem is solved by a Notice of Commencement. This document (sometimes called ‘Notice of Project Commencement’ or ‘Affidavit of Commencement’) formally designates the beginning of a project.
Typically, the filing of a notice of commencement by the property owner or other top-of-chain party affects preliminary notice and mechanics lien requirements and deadlines for subcontractors, material suppliers, and other parties down the contracting chain. This serves as protection for the owner or general contractor, because it creates additional hurdles and limits the lien process timeline for potential lien claimants: if a required preliminary notice is sent late, lien rights may be reduced or even extinguished.
Some states require notices of commencement while others offer the document as an optional precaution for property owners and/or general contractors. (A majority of states’ lien statutes don’t mention notice of commencement at all.) For states in which filing notice of commencement is a requirement or an option, here is what you need to know.
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The 5 States that Require a Notice of Commencement
A notice of commencement designates the official beginning of a construction project. Therefore, it is from this date that deadlines are measured. For example, if a preliminary notice is due 15 days after the project start date, measure 15 days from the date notice of commencement was filed.
The following states require notice of commencement. Follow each state’s link to download the Notice of Commencement form used in that state.
3 States with an Optional Notice of Commencement
Optional notices of commencement sometimes directly protect the general contractor or property owner by limiting the amount of potential lien claims. If, for example, a GC in South Carolina files a notice of commencement, the amount of liens filed by remote claimants (sub-subs, or suppliers to subs) may not exceed the amount the general contractor owes to the subcontractor with whom the remote claimant contracted.
In other states, however, optional notices of commencement indirectly protect the GC or owner by creating a preliminary notice requirement for sub-tier claimants. In Ohio, for example, subcontractors and suppliers are required to send notice of furnishing if the owner files a notice of commencement. There is no notice of furnishing requirement for projects where the owner does not file a notice of commencement.
The following states offer notice of commencement as an option:
When and How to File Notice of Commencement
Notice of commencement is typically filed before or shortly after any labor or materials are furnished on a project. Specific filing requirements vary by state, but in most cases the notice should be recorded with the county as well as posted at the project site.
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