Until recently, Ohio architects, landscape architects, professional engineers, and professional surveyors (“design professionals”) who were unpaid for their services on a commercial real estate project did not have the right to file liens on the real estate being improved. Their colleagues in the construction industry – contractors, subcontractors, laborers, and suppliers – had the right to file mechanic’s liens since the early 1800s. Now, Ohio law provides design professionals the right to file liens on commercial real estate (non-public) projects if there is a written contract signed by both the design professional and project owner.
To perfect the lien, the design professional must file a signed and notarized affidavit with the county recorder in the county where the commercial real estate is located. This may require the design professional to obtain a legal description for the real estate by researching the owner’s deed for the property. The affidavit must be served on the project owner and the property owner (if different) within 30 days. Then, the design professional must commence court proceedings to enforce the lien within two years or within 60 days of receiving a demand to commence suit from anyone with an interest in the property. The lienholder must file suit on the underlying lien but does not have to, but could, seek foreclosure.
Unfortunately, the design professional’s lien is junior in priority to any mechanic’s liens, even if it is recorded prior to the recording of the mechanic’s lien. The design professional’s lien is also junior to previously recorded mortgages and liens, such as judgment liens. Nevertheless, the lien provides leverage at a minimum.
The new law adds the following sections to the Ohio Revised Code:
- 4703.20 through 4703.206 for architects;
- 4703.54 through 4703.546 for landscape architects; and
- 4733.30 through 4733.306 for professional engineers and professional surveyors.
If you want more information about lien rights, please contact Fern Goldman at fegoldman@woodlamping.com.
