Laborers; suppliers of materials to owner, general or sub (apparently any tier sub is OK); and others. NOTE that a clamshell dredge constructed on a gravel pit was deemed to be a structure and an improvement, and unpaid rental for the dredge is lienable. NOTE that proof of delivery of materials creates a conclusive presumption that the materials were actually used in the project. [1311.01, 1311.02, 1311.12; Tri State Crane Rental, Inc. v. Watson Gravel, Inc., 2004 WL 534829, Not Reported in N.E.2d (Ohio App. 2004)] Suppliers to suppliers may be covered. A 1933 case states that they are not covered, but §4113.62 suggests that they may be. In addition, a 1959 case allows a supplier to a supplier to have lien rights, as long as they are not too removed from the owner. In that case, the customer contracted directly with the owner. [Alsco, Inc. v. Mundey 110 Ohio App. 446, 169 N.E.2d 556, (Montgomery 1959)] NOTE that, where a contractual clause explicitly makes payment by the general contractor a “condition precedent” to the contractor’s obligation to pay the sub, this clearly and unequivocally demonstrates an intent to transfer the risk of non-payment from the contractor to the sub, and the clause is deemed a pay-if-paid clause rather than a pay-when-paid clause. [Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp., 16 N.E.3d 645 (2014)] NOTE that where materials (such as fuel) are supplied to a customer that uses them in the operation of their business, or remedially in order to return the property to its preexisting condition, these uses do not constitute improvements to the property, and thus the debt for the materials is not lienable. [Great Lakes Petroleum Co. v. Jayco, Inc., Slip Copy, 2015 WL 1276566 (Ct.App. 2015)]
Subs, laborers, suppliers of materials apparently without restriction as to tier, but the courts have not yet ruled on a claimant more remote than the first tier. Suppliers to suppliers MAY be covered, but more likely against the bond than as a public works lien. NOTE that proof of delivery of materials creates a conclusive presumption that the materials were actually used in the project. Rental equipment is covered, at least for a lien against the contract funds. [1311.25, 1131.251, 1131.26; 153.54; 4113.62; Schor at §36.02[D]; American Guaranty Co. v. Cincinnati Iron & Steel Co., 115 Ohio St. 626, 155 N.E. 389 (Ohio 1927)]
Building and land to extent of owner’s interest. [1311.02] NOTE that where no Notice of Commencement is recorded, a lien on a large project involving a single contract will relate back to the beginning of the project, and if the project has not yet been subdivided, then the entire lien can be enforced against the owner of a single lot or building. (This is not the case for a condominium project.) [1311.03, 1311.08, 5311.13; Stottlemyer Hydromulching, Inc. v. Dearlove, Slip Copy, 2015 WL 8880597, 2015 -Ohio- 750 (Ct.App. 5 Dist. 2015)]
On owner-occupied 1- and 2-family dwellings, lien is against unpaid contract funds. If contractor is paid in full before owner receives the lien notice, then the claimant has no lien. In addition, where the general contractor goes out of business without finishing the owner’s home, and the cost of completion exceeds the unpaid contract balance, a subcontractor of the original contractor will not have any lien rights. Brookville Floor Coverings Unlimited v. Fleming, 151 Ohio App.3d 456, 784 N.E.2d 721 (2003 Ohio 311). [1311.011]
[1311.26] The contract funds. NOTE that a claimant who is owed money by the principal contractor only has lien rights on payments that are due to the principal contractor, thus the lien doesn’t attach to the contract funds until those funds are due to the principal contractor, even though the lien is properly filed. This also means that if the public body can withhold the funds from the general contractor, then the funds can be withheld from the lien claimants as well. [Intercargo Ins. Co. v. Mun. Pipe Contrs., Inc. 127 Ohio Misc.2d 48, 805 N.E.2d 606 (2003)]
[153.54(c)] Note, however, that a contract-manager-at-risk is not required to provide a bond. [State ex rel. Am. Subcontractors Assn., Inc. v. Ohio State Univ., 129 Ohio St.3d 111, 950 N.E.2d 535, 2011 -Ohio- 2881(Ohio,2011)] Note also that public-private contracts with the Department of Transportation also have payment bond requirements. [5501.73]
All claimants except laborers and claimants contracting directly with the owner. If, however, the owner does not record a Notice of Commencement, a notice of furnishing is not required. It is, nonetheless, strongly recommended. If a Notice of Commencement is filed but does not appear to satisfy the statutory requirements, file a preliminary notice (Notice of Furnishing) anyway. Linworth Lumber Co. v. Z.L.H. Ltd., 2003 WL 21805626, Not Reported in N.E.2d (Ohio App. 5 Dist. 2003) Appeal not allowed 100 Ohio St.3d 1473, 798 N.E.2d 407]. If the Notice of Commencement does not accurately reflect the owner’s name, for example using an acronym instead of the name, then the Notice will be defective and no preliminary notice will be required. (It is recommended to send one anyway, however, if possible.) Clinton Elec. & Plumbing Supply v. Airline Professionals Assn., Local 1224, 2006 WL 689043, Not Reported in N.E.2d (Ohio App. 12 Dist. 2006)] If the subcontractor is still performing work under its original contract when the Notice of Commencement is filed, then the sub has 21 days after the filing of the NOC within which to file its Notice of Furnishing. [Structural Grouting Sys., Inc. v. Precision Wood Designs, Inc., 2001 WL 196577, Not Reported in N.E.2d (Ct.App. Ohio 9 Dist. 2001) Schor at §36.03[F]] Apparently no notice of furnishing is required on owner-occupied 1- and 2-family dwellings and condos, though it is advisable to give the preliminary notice on such a project anyway, and especially where a Notice of Commencement is recorded and it lists only one original contractor. If the NOC states that there are “multiple original contractors” then the preliminary notice is not required to be given to the general contractor. [1311.04, 1311.05, 1311.011]
NOTE that where the claimant timely submits its invoices to the claimant’s customer and properly performs his or her contract, the claimant will be able to sue his or her customer and recover interest at the rate of 18% per year, plus costs and attorney’s fees. See “special notes” section, below.
Any claimant who is not contracting directly with the general contractor. Laborers, however, are never required to send a preliminary notice. [1311.261]
All claimants supplying a subcontractor with labor or materials costing more than $30,000. (In other words, applies to those not in direct privity with the principal contractor.) [153.56] NOTE, however, that there is no requirement of a preliminary notice on a highway project with the department of transportation, however if the labor or materials cost more than $30,000, it would be a good idea to give the notice anyway. [5525.16]
- a) Owner’s, part owner’s, or lessee’s designee, as set out in the Notice of Commencement, if any. If there is no designee, or if designee has died or ceased to exist, then upon owner, part owner, or lessee.
- b) General contractor, though notice to general is not required if claimant is contracting directly with general. Note also that on owner-occupied 1- and 2-family dwellings and condos where the NOC states that there are “multiple original contractors,” then the preliminary notice is not required to be given to the general contractor.
-MAY also give notice to lender. [1311.05]
-Public authority. Copy to public authority must have sworn statement as to date notice given to general. Note that the Public Works Commission is a funding agency, and cannot be a public authority for the purposes of this statute. [1311.261; Miller-Yount Paving, Inc. v. Freeman Cargo Carrier, Inc., 2000 WL 341125 Not Reported in N.E.2d (Ohio App. 7 Dist., 2000)]
General contractor. [153.56]
WHERE OWNER RECORDS A NOTICE OF COMMENCEMENT WITH THE COUNTY RECORDER:
Notice must be received within 21 days after first delivery, except that if it is served by certified mail, service is complete upon mailing. [VP Consol. Holdings, Inc. v. Hunt, 2009 WL 641427, Not Reported in N.E. 2d (Ohio App. 6 Dist.,2009)] NOTE that a notice that is given early is ineffective, and if it is served by certified mail, it must be mailed after the first delivery. [Halsey, Inc. v. Isbel, Slip Copy, 2010 WL 1850660, 2010 -Ohio- 2052 (Ohio App. 12 Dist., 2010)] Notice will relate back 21 days if sent after first delivery. If the Notice of Commencement is given late, then the preliminary notice must be given within 21 days after the Notice of Commencement. A subcontractor or material supplier need not serve a notice of furnishing to preserve lien rights for the period before the notice of commencement is recorded. [1311.05; 1311.19]
WHERE OWNER FAILS TO TIMELY RECORD NOTICE OF COMMENCEMENT OR FAILS TO PROVIDE A COPY WITHIN 10 DAYS OF CLAIMANT’S WRITTEN REQUEST:
(If the Notice of Commencement is never filed, then the preliminary notice is not necessary.) Received or mailed within 21 days after notice actually filed, or actually provided to claimant. [1311.04, 1311.05, 1311.19] If served within that 21-day period, notice covers all labor and materials claimant furnished to the project. If served later, only relates back 21 days. A subcontractor or material supplier need not serve a notice of furnishing to preserve lien rights for the period before the notice of commencement is recorded. It is possible that this notice is also considered served when mailed, but it would be best to have it delivered prior to that time. [1311.04; 1311.05].
ALSO: Within 10 days after a request by the owner, lessee, mortgagee or contractor, the claimant must provide a written statement of the amount of work and materials finished to the date of the statement and still unpaid. Failure to do so forfeits lien. [1311.12]
NOTE: Service of notice is complete upon receipt, unless recipient refuses to claim or accept notice; then service is complete when first attempted. Also, a notice is presumed to have been received three days after the date of the mailing, unless a written acknowledgement, receipt, or other evidence provides proof to the contrary. Note that service for purposes of the preliminary notice [1311.05], service is complete upon mailing by certified mail. [1311.19]
-To General Contractor: Within 21 days after first work or delivery. If served later, relates back 21 days. If service is made by certified mail, then service is effective as of the date of mailing. If it is personally served, it must be served within the 21-day deadline. [1311.19; VP Consol. Holdings, Inc. v. Hunt, Not Reported in N.E.2d, 2009 WL 641427 (Ohio App. 6 Dist.,2009)]
-To Public Authority: No specific date, but recommend giving it as soon as possible after delivering notice to general. [1311.261, 1311.28, 1311.19]
Notice must be received within 21 days after first work or delivery. If served later, relates back 21 days. NOTE, however, that if service is made by certified mail, then service is effective as of the date of mailing. [153.56, 1311.19; VP Consol. Holdings, Inc. v. Hunt, Not Reported in N.E.2d, 2009 WL 641427 (Ohio App. 6 Dist.,2009)]
See attached Form A. [1311.05] Although the claim is not verified, neither the statute nor the case law clarifies whether anyone other than the claimant can sign the notice.
Please contact Levy von Beck and Associates.
Please contact Levy von Beck and Associates.
Served upon owner, etc. either by the county sheriff, or other means provided in the Ohio rules, or by certified or registered mail, overnight delivery, or hand delivery, as long as it includes a written receipt. For purposes of determining whether service is timely, service by certified mail is complete on the date of the mailing, if the notice is actually received. If the service is attempted upon an owner, part owner, or lessee, or designee, at the address contained in the notice of commencement, and if the notice is returned unclaimed or refused, service is complete when first attempted. Service by ordinary mail alone is insufficient. Service can be established where the recipient acknowledges receipt of the notice or where it is established by a preponderance of evidence that the person being served actually received the notice. The claimant must be able to prove actual receipt of the notice, or that notice was unclaimed or refused. FAX ALONE IS NOT SUFFICIENT. [1311.04, 1311.19; Stock Building Supply, Inc. v. National City Mtge. Co. 2004 WL 2588202, Not Reported in N.E.2d (Ohio App. 2 Dist.,2004); Hanson Aggregates Davon v. J & H Reinforcing & Structural Erectors, Inc., Slip Copy, 2014 –Ohio- 4832, 2014 WL 5492812 (Ct.App.2014)]
Same as for private works. If given by certified mail, the notice of furnishing is considered served on the date of mailing. [VP Consol. Holdings, Inc. v. Hunt, Not Reported in N.E.2d, 2009 WL 641427 (Ohio App. 6 Dist.,2009)]
An interim notice is not required.
An interim notice is not required.
All claimants. [1311.06]
All claimants. [1311.26; 153.56; 5525.16] NOTE that where a claimant does not file a claim, the department of transportation is not required to withhold funds to cover the claim, even if the department has notice of the claim. [United States Steel Corp. v. Ohio Dept. of Transp. 61 Ohio Misc.2d 233, 577 N.E.2d 157 (Ohio Ct.Cl. 1988)]
-Recommended to notify mortgagee as well. [1311.06, 1311.07, 1131.14]
-Representative of public authority named in the notice of commencement
-General contractor (The public agency is required to provide the notice to the general; the claimant may do so. It is advised to do so.)
-Subcontractor. [1311.26, 1311.29, 1311.31]
Sureties. [153.56; 5525.16]
ALL PROJECTS EXCEPT OWNER-OCCUPIED CONDOS AND 1 AND 2 FAMILY DWELLINGS:
Filed and received within 75 days of claimant’s last labor or delivery. NOTE that service on owner must be within 30 days after filing, or if the owner can’t be found in the county, then posted within 40 days of filing. [1311.07; Specialty Minerals, Inc. v. Dunbar Mechanical, Inc., 164 Fed. Appx. 539 (6th Cir. 2005)] NOTE also that, even if the contract or subcontract contains a pay-when-paid clause, an unpaid claimant must timely file a claim to protect his or her lien rights. [4113.62] Note also that, where a contractual clause makes payment by the general contractor a “condition precedent” to the contractor’s obligation to pay the sub, this clearly and unequivocally demonstrates an intent to transfer the risk of non-payment from the contractor to the sub, and the clause is deemed a pay-if-paid clause rather than a pay-when-paid clause. Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp., 16 N.E.3d 645 (2014)
CONDOS OR 1 OR 2 FAMILY DWELLINGS:
Filed and received within 60 days from last furnishing labor or materials. [1311.06] BUT NOTE that no lien will attach if owner has fully paid general contractor before owner receives copy of lien, therefore it is STRONGLY recommended that the lien be filed early if there is any possibility that contractor will be paid in full shortly after claimant’s lien is filed. ALSO, as the lien amount will ultimately be limited to the amount unpaid to the contractor (and in fact all liens together cannot exceed unpaid amount), early filing is advised. NOTE ALSO that if the owner (or part owner, purchaser or lessee) notifies the claimant in writing that, prior to the owner (or part owner, etc.) receiving a copy of the claimant’s lien, either (a) the original contractor was paid in full, or (b) the owner presents evidence that the cost of completing the contract exceeded, or is reasonably expected to exceed, the balance due to the contractor under the original contract, then the claimant must release the lien within 30 days of receiving this notice. If the claimant fails to timely release the lien, the claimant will be liable to the owner (or part owner, etc.) for all damages arising from the claimant’s failure to release the lien. The damages include, but are not limited to, court costs and attorney fees incurred in any litigation between the owner and the claimant who refuses to release the lien. [1311.011; 1311.06] NOTE that the property owner will not be liable to a subcontractor for any amount greater than the unpaid balance of the contract minus the cost of completing contract according to its terms. Thus if the contractor is paid for the sub’s work, and then goes out of business without paying the sub, the sub has no recourse against the homeowner. Brookville Floor Coverings Unlimited v. Fleming, 784 N.E.2d 721, (Ohio App. 2 Dist. 2003). NOTE also that, even if the contract or subcontract contains a pay-when-paid clause, an unpaid claimant must timely file a claim to protect his or her lien rights. [4113.62]
To the public body:
Filed less than 120 days after last delivery, but the sooner the better because receipt of the notice requires the public authority to withhold the funds from the contractor. If the notice is given after all funds have been paid to the contractor, then there will be nothing for the claimant to recover. [1311.32, case law]
To the county recorder:
Filed within 30 days after notice to public body. [1311.26; 1311.29]
To the general:
Received from the public agency within 5 days after filing, together with notice that general must give notice of intention to dispute claim within 20 days.
To the sub:
Received within 20 days after serving public body. [1311.31]
Received after furnishing materials but less than 90 days after completion of the contract by the principal contractor and acceptance of the project by the public body. [153.56; 5525.16]
-Filed with county recorder. [1311.06]
-Personally served on owner or agent themselves (leaving it at their home is insufficient), either by the county sheriff, or other means provided in the Ohio rules, or by certified or registered mail, overnight delivery, or hand delivery, as long as it includes a written receipt. If the service is attempted upon an owner, part owner, or lessee, or designee, at the address contained in the notice of commencement, and if the notice is returned unclaimed or refused, service is complete when first attempted. Service by ordinary mail alone is insufficient. Service can be established where the recipient acknowledges receipt of the notice or where it is established by a preponderance of evidence that the person being served actually received the notice. If none of the above techniques is successful, then the notice must be posted on premises. [1311.07, 1311.19]
-Personally served on or registered mail to mortgagee. [1311.07, 1311.14]
-SERVICE BY FAX ALONE IS NOT SUFFICIENT. [1311.19; Stock Building Supply, Inc. v. National City Mtge. Co. 2004 WL 2588202, Not Reported in N.E.2d (Ohio App. 2 Dist.,2004)]
Registered mail to public authority, filed with county recorder. Service upon the general by one of the methods discussed pertaining to private works final notices. The notice is to be “furnished” to the subcontractor; personal service or certified or registered mail recommended. Actual receipt by the subcontractor is required; if the subcontractor is not served the claimant loses its claim against the contract funds. [1311.31; 1311.19]
Registered and regular mail recommended, though not required. [153.56, 5525.16; Schor at §36.02[D]]
See Form B attached.
-Amount due after setoffs. (Note that the lien amount on a condominium or a 1- or 2-family dwelling will ultimately be limited to the amount unpaid to the contractor, and that all liens together cannot exceed unpaid amount. [1311.011; 1311.06])
-Description of property sufficient to identify it (Note that if the description is accurate, having an erroneous permanent parcel number will not render the lien invalid. [JJO Constr., Inc. v. Penrod, Slip Copy, 2010 WL 2333016 (Ohio App. 8 Dist.,2010)]
-Name and address of claimant’s customer
-Name of owner, part-owner or lessee
-Name and address of claimant
-First and last dates of delivery. Note that the failure to specify the first date of delivery can invalidate a lien. In re Chaffin, 276 B.R. 203 (S.D. Ohio 2001). Note also, however, that a clerical error as to the year the work was performed may not be fatal, at least where there is no dispute about when the work was actually performed. [Burroughs Framing Specialists, Inc. v. 505 W. Main St., L.L.C., 18 N.E.3d 1253 (Ct.App.2014)]
-Must be verified. Neither the statute nor the case law clarifies whether anyone other than the claimant can sign the claim. [1311.06]
Note that if a claim is filed on behalf of several laborers, claim must itemize each laborer’s claim.
NOTE that if the lien affidavit includes incorrect information as a result of incorrect information contained in the notice of commencement, the claimant may file for record an amended affidavit for a lien. The amended affidavit shall contain all of the information required for an original affidavit. The lien claimant must then serve a copy of the amended affidavit on the owner, part owner, or lessee. The lien claimant may file the amended affidavit for record at any time during the time that the lien acquired by the original affidavit continues in effect. The amended affidavit does not extend any filing deadlines. [1311.04]
NOTE ALSO that where no NOC is recorded, a lien on a large project involving a single contract will relate back to the beginning of the project, and if the project has not yet been subdivided, then the entire lien can be enforced against the owner of a single lot or building. (This is not the case for a condominium project.) [1311.03, 1311.08, 5311.13; Stottlemyer Hydromulching, Inc. v. Dearlove, Slip Copy, 2015 WL 8880597, 2015 –Ohio– 750 (Ct.App. 5 Dist. 2015)]
Sworn and itemized statement containing:
-Amount due and unpaid for work or materials furnished, after deducting all credits and setoffs. Per case law, this affidavit must include an itemized statement of the labor performed or materials furnished. Furthermore, it may not include interest charged to the contractor. [Intercargo Ins. Co. v. Mun. Pipe Contrs., Inc. 127 Ohio Misc.2d 48, 805 N.E.2d 606 (2003)]
-Date of last delivery or work
-Address of claimant.
-Note that neither the statute nor the case law clarifies whether anyone other than the claimant can sign the claim. [1311.26]
Statement of the amount due to the claimant. [153.56; 5525.16]
Within 6 years after filing with county recorder, BUT if owner, part owner, lessee or mortgagee or other person with an interest in the property, or any general or sub who has put up a bond or other security, serves on the lien claimant a notice to commence suit, then suit must be commenced within 60 days after receiving that notice. [1311.11; 1311.13]
NOTE that filing a motion to intervene and proposed complaint within 60 days is sufficient to satisfy deadline of commencing suit within 60 days. [1311.11; Tri State Crane Rental, Inc. v. Watson Gravel, Inc., 2004 WL 534829, Not Reported in N.E.2d (Ohio App. 1 Dist.,2004)]
Said notice may be delivered to the address on claimant’s lien or to the claimant’s agent as shown on the lien. [1311.11]
Where a lien is timely filed but a property is sold in a tax foreclosure sale, a lien claimant can intervene where there are still proceeds to attach. [Rokakis v. Martin, 906 N.E.2d 1200 (Ohio App. 8 Dist.,2009)]
Within 60 days after receiving a notice to commence suit from public authority, general contractor, or subcontractor. [1311.311]
More than 60 days after giving notice to sureties, but less than one year after acceptance of project. [153.56; 5525.16] NOTE, HOWEVER, that a charter city may specify a different bond than these statutes authorize. In that case, if the city charter or ordinance doesn’t specify a time within which the suit must be brought, then 60-day limit discussed here applies. Thus if the contract is with the city, it is important to verify the time for bringing suit. [Thomas Steel, Inc. v. Wilson Bennett, Inc., 711 N.E.2d 1029, 127 Ohio App. 3d 96 (Ohio App. 1998)]
Notice of Furnishing
(For use in connection with improvements to property other than public improvements)
To:… (Name of owner, part owner, or lessee or designee from the notice of commencement)
……. (Address from the notice of commencement)
To:… (Name of original contractor from notice of commencement)
…. … (Address of original contractor from notice of commencement)
Please take notice that the undersigned is performing certain labor or work or furnishing certain materials to …….. (name and address of other contracting party) ……..in connection with the improvement to the real property located at ………… The labor, work, or materials were performed or furnished first or will be performed or furnished first on ……………. (date).
WARNING TO OWNER: THIS NOTICE IS REQUIRED BY THE OHIO MECHANICS’ LIEN LAW. IF YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS AND DUTIES UNDER THESE STATUTES YOU SHOULD SEEK LEGAL ASSISTANCE TO PROTECT YOU FROM THE POSSIBILITY OF PAYING TWICE FOR THE IMPROVEMENTS TO YOUR PROPERTY.
(Name and address of lien claimant)
(Name and capacity of party signing for lien claimant)
(Address of party signing)
AFFIDAVIT FOR MECHANICS’ LIEN.
State of Ohio,
County of ………………..,ss: . . . . .
………………………, whose address is ……………………, being first duly sworn, says that ………………., the lien claimant, furnished certain material or performed certain labor or work in furtherance of improvements located on or removed to the land hereinafter described, in pursuance of a certain contract, with …………………, the owner, part owner, lessee, original contractor, subcontractor, or other person, as the case may be, whose address is …………………….. The first of the labor or work was performed or material was furnished on the …….. day of ……………, …. (year). The last of the labor or work was performed or material was furnished on the …………………………. day of ……………………., ……. (year), and there is justly and truly due …………., the lien claimant therefor from ………………………., the owner, part owner, lessee, original contractor, subcontractor, or other person, as the case may be, over and above all legal setoffs, the sum of ……………….. dollars, for which amount ……………….., the lien claimant, claims a lien on the land, building, or leasehold, of which ………………….. is or was the owner, part owner, or lessee, as the case may be, which property is described as follows:
Sworn to before me and subscribed in my presence this …… day of …………, …. (year).
“Notice of Furnishing”
(For use in connection with public improvements)
(Name of principal contractor)
(Address of principal contractor)
The undersigned notifies you that the undersigned has furnished or performed or will furnish or perform (describe labor, work, or materials) for the improvement of real property identified as (property description or address) under order given by (name of subcontractor or material supplier). The labor, work, or materials were first furnished or performed or will be furnished or performed on (date).
(Signature of subcontractor or material supplier)
(Address of subcontractor or material supplier)
To Lien Claimants and Subsequent Purchasers:
Take notice that labor or work is about to begin on or materials are about to be furnished for an improvement to the real property described in this instrument. A person having a mechanics’ lien may preserve the lien by providing a notice of furnishing to the above-named designee and the above-named designee’s original contractor, if any, and by timely recording an affidavit pursuant to Section 1311.06 of the Revised Code.
A copy of this notice may be obtained upon making a written request by certified mail to the above-named owner, part owner, lessee, designee, or the person with whom you have contracted.