Does the lien waiver in this subcontract, or the lack of one, decide whether the subcontractor can lien the job?
On the Ohio authority verified here, what decides a subcontractor's lien is the notice of furnishing, not the waiver. R.C. 1311.05(A), as the Eighth District set it out, requires a subcontractor or material supplier who performs labour or work upon or furnishes material in furtherance of an improvement to real property and who wishes to preserve its lien rights to serve a notice of furnishing on the owner's, part owner's or lessee's designee named in the notice of commencement and on the original contractor within twenty-one days after performing the first labour or work or furnishing the first materials (Pitt). That requirement turns on status: original contractors and construction managers contract with the owner directly, and R.C. 1311.01 defines subcontractor, original contractor and construction manager, as Panzica quotes it. Two timing provisions in the same section cut the other way. Where the owner records a notice of commencement but does so after the first labour, work or material, subcontractors and material suppliers have twenty-one days after that notice to file a notice of furnishing and need not serve one for the earlier period (R.C. 1311.04(I)); and where the owner fails to record a notice of commencement at all, or records one that is materially deficient, a subcontractor is not required to serve a notice of furnishing to preserve its lien rights (R.C. 1311.04(R)).
The trap
No Ohio provision voiding an advance lien waiver was located for this rule: R.C. Chapter 1311 is outside our published statutes and no opinion read here quoted such a subsection, so a subcontractor who signs one in Ohio cannot rely on this rule to escape it, and an owner should not read this rule as blessing one either. The live Ohio risk in the cases read is the twenty-one-day clock: in Pitt the general contractor argued that the subcontractor's not filing a lien showed no reliance because the lien would have been untimely under R.C. 1311.05 anyway, and the Ninth District disagreed, holding every element of promissory estoppel established and affirming judgment for the subcontractor. Whether the twenty-one-day rule applies at all depends on whether the claimant is a subcontractor or an original contractor or construction manager as R.C. 1311.01 defines those terms, and Panzica turned on exactly that classification. On a home construction contract a different bar can end the claim whatever the notice says: under R.C. 1311.011(B)(1) a subcontractor may not obtain a lien for work on such a contract where the homeowner paid the original contractor in full before receiving a copy of the subcontractor's lien (Almasoodi).
8 authorities
- case2024-Ohio-2297Pitt v. Quanta Bldg. GroupOhio Ct. App. 9th Dist.decided 2024
The words that state the rule
RC. 1311.05(A) states that a lien must be filed within 21 days after performing the first work or furnishing the first materials, unless that time is extended. {¶14} The statute allows for a twenty-one day window to file a notice of furnishing after the commencement of work.
- case2015-Ohio-3478Panzica Constr. Co. v. Bridgeview Crossing, L.L.C.Ohio Ct. App. 8th Dist.decided 2015
The words that state the rule
In the event that an owner does record a notice of commencement but does so after the first work, labor, or material has been performed on, or furnished to, the improvement, then subcontractors and material suppliers have 21 days after the notice of commencement to file a notice of furnishing in order to perfect their liens, and they need not serve a notice of furnishing to preserve lien rights for the period before the notice of commencement is recorded. R.C. 1311.04(I).
- case2024-Ohio-2297Pitt v. Quanta Bldg. GroupOhio Ct. App. 9th Dist.decided 2024
The words that state the rule
Jones Corp. argues that Mr. Pitt’s failure to file a mechanic’s lien did not establish reliance because, pursuant to R.C. 1311.05, Mr. Pitt’s lien would have been untimely.
- case2024-Ohio-2297Pitt v. Quanta Bldg. GroupOhio Ct. App. 9th Dist.decided 2024
The words that state the rule
the trial court did not err by entering judgment in Mr. Pitt’s favor on the claim of promissory estoppel because the record demonstrates that Mr. Pitt established all of the elements of a claim for promissory estoppel. Accordingly, Jones Corp.’s first assignment of error is overruled.
- case2024-Ohio-2297Pitt v. Quanta Bldg. GroupOhio Ct. App. 9th Dist.decided 2024
The words that state the rule
“[A] subcontractor * * * who performs labor or work upon or furnishes material in furtherance of an improvement to real property and who wishes to preserve the subcontractor’s or material supplier’s lien rights shall serve a notice of furnishing * * * 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 the subcontractor or material supplier is performing labor or work or furnishing materials * * * within twenty-one days after performing the first labor or work or furnishing the first materials.”)
- case2015-Ohio-3478Panzica Constr. Co. v. Bridgeview Crossing, L.L.C.Ohio Ct. App. 8th Dist.decided 2015
The words that state the rule
If an owner does not record a notice of commencement prior to the start of work, then the original contractor may request, in writing, that the owner record a notice of commencement and serve it on all of the various contractors and subcontractors. R.C. 1311.04(M)(1). If the owner fails to record a notice of commencement, or if a notice of commencement is recorded but is materially deficient in some way, then a subcontractor is not required to issue a notice of furnishing to preserve its lien rights. R.C. 1311.04(R).
- case2015-Ohio-3478Panzica Constr. Co. v. Bridgeview Crossing, L.L.C.Ohio Ct. App. 8th Dist.decided 2015
The words that state the rule
R.C. 1311.01 provides the following definitions: (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.
- case2023-Ohio-895Almasoodi v. J. Harris Constr. Inc.Ohio Ct. App. 5th Dist.decided 2023
The words that state the rule
Under R.C. 1311.011(B)(1), a subcontractor may not obtain a lien to secure payment for work performed on a home-construction contract when the homeowner has paid the original contractor in full and payment was rendered before the homeowner received a copy of the subcontractor’s lien.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.