Are Defects in NOC a Valid Excuse for Not Serving a NOF?
Kegler Brown Construction Newsletter June 1, 2007
Our firm was recently involved with probably the first case in Ohio to interpret whether, under the Ohio's Modern Mechanic's Lien Law, a defective Notice of Commencement ("NOC") excuses a subcontractor or supplier from the duty to serve or attempt to serve a Notice of Furnishing ("NOF") upon the owner. Prior to this decision, many commentators believed that even technical flaws in a recorded Notice of Commencement did not excuse a subcontractor or supplier from attempting to serve a Notice of Furnishing.
However, in the case of RN Building Materials v. Ahn, Judge Travis of the Franklin County Common Pleas Court ruled that several significant procedural defects in a layman prepared Notice of Commencement (no legal description, wrong owner name) excused a supplier from its obligation to serve a Notice of Furnishing, even when the supplier made no attempt to serve such a Notice.
This means that owners must take special care in seeing that Notices of Commencement are properly prepared, filed with the county recorder and kept posted on the jobsite. This case also gives subcontractors and suppliers an opportunity to salvage lien rights when they have failed to serve a Notice of Furnishing, by later spotting technical "defects" in the Notice of Commencement.