Who Pays for Architect’s Mistake?

Barbara asks: We had to build a new basement under our home and hired an architect to develop  plans. The job included enlarging our downstairs bedroom and adding a garage off the bedroom.  The former back entrance was a split-level  (you either walked  up 5 stairs to the main floor, or down 7 stairs to the basement). The exposed foundation wall at the entrance was about 2-1/2 ft. high. In building the new foundation, we raised the basement ceiling and added a number of windows. Everything was detailed properly by the architect, except for one key item. He missed, and all of us missed,  the fact that there needed to be an opening in the new, higher concrete wall for the  entry door.  We ended up having to hire a concrete cutting company to cut the opening for the back door, to the tune of over $500.00.  Who should be held responsible for this?

Steve Bliss of BuildingAdvisor.com responds: There’s an old lawyer joke that goes like this: “I wish I had a one-handed lawyer, because every time I ask him a question, he says, ‘Well on the one hand…” The point is that most legal questions, like yours, do not have a clear-cut  answer. If they did, a lot of lawyers would have to find a new way to make a living.

The answer depends in part, on the language in the agreement that you signed when you hired the architect. Most design contracts include language that states something like “contractor shall check and verify all dimensions on site before execution of the work,” which tries to pass the buck for most errors to the contractor. The answer also depends on the particulars of the case:  What was the architect hired to do – just preliminary plans or a completed design ? Was it made clear to the architect that a door was to be placed there, and was a door drawn on the plans? Finally  who said what to whom, who discovered the error and when, and was any of this documented?

When this type of dispute gets litigated, typically for errors costing many thousands of dollars, courts generally expect architects  to exercise “reasonable care” in the practice of their profession, but not perfection.  When errors or omissions in the plans are discovered during construction, the contractor typically executes a change order. The question is who pays for the extra work?

In a situation like yours, where the costs are relatively small, it’s best to try to work things out amicably with contractor and architect. I’d suggest starting with the architect and getting his perspective. Does he admit that he is responsible for the mistake?  And if so, is he willing to pay for the extra work, which might be covered under his “errors and omissions” insurance.

Also talk to the contractor. Does he feel at least partially responsible – or does he feel like he was simply following the plans and had no reason to believe a cutout would be required in the concrete. If there was not doorway drawn on the plans, it might have been reasonable for the contractor to build as drawn. If there was a door shown, but no cutout in the concrete, then the contractor should have noticed this and contacted the architect (if still involved), or the homeowner of the conflict in the plans before proceeding.

If both the architect and builder are willing to accept at least partial responsibility for the mistake, maybe you could get them to split the cost two ways – or three ways with you. If they are at fault but are unwilling to contribute, consider filing a complaint with your local Better Business Bureau, which can put pressure on them to do the right thing.

Unfortunately, going to court for a $500 mistake is not really an option since it typically costs tens of thousands of dollars to sue someone – if you could figure out who to sue. In some cases, a lawyer’s letter can be helpful, but even that could end up costing as much as the construction error (if you do consult a lawyer, make sure you get a cost-estimate before proceeding). Small Claims Court another option if you’re motivated and have the time to pursue this.

At the end of the day, however, a negotiated solution where everyone compromises a little is the best solution to these kinds of problems. It’s a rare construction or remodeling project that doesn’t have a least a few  bumps along the way – the bigger the project, the bigger the bumps.

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