Q: 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? — Barbara
A: In general, it is the architect’s responsibility to design a building that works as planned, is buildable, and complies with all building codes and regulations. When a significant error or omission in the plans leads to extra costs, delays, and possibly a flawed building in the end, it is usually the architect’s responsibility to make it right.
Reasonable Care
Courts do not require perfection in a set of architectural plans, but expect “reasonable care” in the practice of the profession. That is usually defined as the level of care usually exercised by someone in that profession, on the same type of project under the similar conditions. While big blunders may be clear-cut, small ones often fall into a gray area.
There are many variations and exceptions to this rule. For example, was the architect hired in a limited role for just preliminary design? In that case, he would probably not be responsible for a missed entry door. Also was the door an obvious requirement of the project? In cases where the plans omit a normal and necessary item like an entry door, courts may make the building owners pay for the extra work under the principle that they would have had to pay for this anyway. That is, the mistake did not make them pay extra to correct the error or to build something twice.
In other cases, who exactly made the error is not clear-cut and responsibility may be shared by some combination of the architect, contractor, and owner. All building plans are subject to some interpretation as it is impossible to show every detail on a plan down to the last nail. The level of detail in a set of plans varies, sometimes with the amount spent on the plans.
The contractor is expected to read the plans and execute them “in a workmanlike manner.” In a perfect world, where something is ambiguous or inconsistent, the contractor should notify the architect for clarification. However, if the contractor makes a reasonable interpretation of what the architect had in mind, but got it wrong, who is responsible?
In small ways, these types of misunderstandings happen on every architectural job. It is not uncommon for an architect to visit the job site and say “Well, this is close to what I had in mind…” Hopefully everyone is flexible enough to work it out amicably. If not, it becomes a matter of negotiation (or, worst case, litigation) to find an acceptable solution.
Contract Language
When significant 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? The answer depends in part, on the language in the agreement you signed when you hired the architect as well as the language in the construction contract. On architectural jobs, most construction contracts include language such as “contractor shall check and verify all dimensions on site before execution of the work” and immediately report any errors to the owner and architect. Similar “Verify in Field” (VIF) language is often stamped directly on the plans. This is an effort to make the contractor, not the architect, responsible for any measurement errors on the plans.
Standard AIA construction contracts instruct the contractor “to carefully study and compare the various contract documents… and take field measurements” and to report any “errors, omissions or inconsistencies in the contract documents” to the architect.
However, this type of language does not entirely get the architect off the hook for errors. Unless the construction contract specifically makes the contractor responsible for finding design errors and paying for any additional work, courts have generally held the design team responsible.
Who is responsible also depends on the particulars of the case? Did the owner make it clear to the architect that a door was to be placed there, and was a door drawn on the plans? Were there conflicts between the drawn plans and written specs? Finally, who discovered the error, who said what to whom and when, and was any of this documented in writing?
Negotiate A Resolution
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 no doorway drawn on the plans, it might have been reasonable for the contractor to build the project as drawn. If there was a door shown, but no specific cutout in the concrete, then I think 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 or contractor (or architect’s) licensing board, 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 bring a lawsuit – 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 often 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.
For a definitive answer, please consult a lawyer — which I am not. — Steve Bliss, BuildingAdvisor.com
Read more on Working With Architects Dispute Resolution
Gail Jag says
Can I Get Refund on Design That’s Overbudget & Not To Code?
The plans submitted to the City all failed approval. The contractor hired the architect, kept advising that the project cost was around $30-40k. Now back to say $95K and the plans have failed in all disciplines. They did not include mechanical needs as in code, AC capacity was incorrect in plans, and the building department and City will not approve the slope of roof as submitted as it is not to code. I have paid $3,000.00 down, can I ask back for any of this and cancel the job.
buildingadvisor says
Sorry to hear about your situation. It sounds like you have lost faith in this company’s ability to deliver the project you hired them to do — a reasonable conclusion based on their performance so far. In that case, it would be best to terminate the contract and to start fresh with a new contractor.
It is fortunate that you have made a relatively small deposit. You can certainly request a refund based on the fact that they have not produced a plan that meets your agreed-to budget or complies with the building code. You would have a strong case that this constitutes a breach of contract, giving you the right to terminate.
Assuming you have a written contract, you should follow the stated procedure for contract termination. You might also want to check in with a lawyer about the best way to terminate the contract without exposing yourself to possible legal action by the contractor. They may claim you own them even more money for work completed on the project.
It sounds like you are still in the design phase of a design-build contract. In many cases, design-build contracts separate the billing and scope of work into two parts – one for design and one for construction. The design contract will often stipulate how the plans can be used and by whom.
If you wish to make use of the design work completed, even though it does not meet your needs in its current form, then you might want to consider letting them keep some or all of the $3,000 in return for your ownership of the plans.
E .R. says
Who Is Responsible for Ductwork Omission?
Who is to pay? What damages can be collected? Building a raised house. The architect failed to draw a/c ductwork in the plans between the main two levels of the house. The house is raised. By the time the contractor found the error the house was framed, had all siding on, and the roof was on. The ductwork had to be run under the house, which is NOT what we had planned for under our house, Who is responsible? Can one also ask for extra interest paid on the loans due to an extension of build time for 4 months??
buildingadvisor says
The short answer is that the architect is responsible for clear-cut errors, but it is not always clear who is at fault. Sometimes the responsibility is shared with the general contractor or others and is open to negotiation or, if necessary, litigation. The solution may involve negotiation and compromise where the cost is shared by more than one of the parties involved, including the owner and general contractor.
If there is a clear-cut, significant error or omission on the part of the architect, it is legally his responsibility to cover the costs to make things right. If you discussed this issue with the architect early in the process, and he agreed to locate the ductwork in the floor framing, then he should cover the added costs. Most architects carry errors-and-omissions insurance to cover this type of issue.
However, not every set of architectural plans includes mechanical systems such as heating, cooling, plumbing, and electrical. If the architectural services you contracted for did not include a heating and cooling plan, then this responsibility would typically fall to the general contractor in conjunction with the HVAC subcontractor. Ideally, the contractor would have discussed this with you before starting construction.
If the general contractor notices an obvious error, omission, or inconsistency in the plans, most architectural contracts include a provision that GC should report these to the architect to resolve the problem. Arguably, the contractor should have raised this issue with you and/or the architect before framing the house. After all, the ductwork has to go somewhere. It sounds like an oversight on the contractor’s part, at least to some extent.
Perhaps the architect assumed the contractor would take care of the ductwork. The contractor assumed the HVAC sub would take care of the ductwork. The HVAC sub assumed the contractor and architect had a plan for the ductwork. And you assumed that the professionals had this under control. These types of assumptions are the source of many construction disputes.
Chris says
Why Should Builder Absorb Costs of Architect’s Error?
We have started a build for a customer where shes appointed an architect the drawing show a starting point at the rear corner of the house with a 1:50 scale to achieve a projection from the front to rear of 6.3 this dimension worked and has been achieved.
The width showed between the house and the boundary fence the utility side extension and a narrow path to which we were told needed to be achieved otherwise access from front to rear with bikes bins etc can happen and this path would be 700mm.
We use the boundary fence post as a starting point and achieve a 700mm path the utility build should then match the plans right?
day 5 into the job the customer brings to attention of the builder that the dimension of the utility build is wrong in width she was asked to speak to the architect. later that day it was verbally agreed that the build was to proceed as the path was needed at the width it was.
the build is now up to wall plates and we have been asked to leave site as the build is deemed not fit for purpose as the width isn’t the same as the plan and that the customer wishes to compromise the path instead.
We are contracted to build to architects drawings
The architect has since provided us with his measurements that show the 3×3 structural post where the boundary is being passed by 125mm which is 75mm of post plus 50mm of next doors rail and the tape is touching the back of next doors decorative feather edge boarding in my eyes this is over the boundary.
The builder is now being taken down the legal route not the architect and have just finished mediation where the settlement from the customer was £0 balance and keep the utility in place. so it leaves the builder out of pocket
can you let me know what you think
buildingadvisor says
Situations like this are never easy to untangle, especially from a distance with only skeletal facts and one person’s perspective. Also, it is hard to follow precisely what happened, and who did what in what sequence.
However, the bottom line is this: The builder and the architect share responsibility for making sure that all measurements are correct. Whether or not the architect stamps his plans with “Verify in Field” or similar disclaimers, it is always wise for the builder to double-check all critical measurements on site.
That way, problems can be identified before construction begins. In you discover errors or omissions in the plans, notify the owner and architect in writing that you cannot proceed until the problem is resolved. Also, ask the architect for clarification is any details are murky. Don’t just guess.
If the architect and/or owner tells you to build it as drawn, despite your concerns, get them to sign a statement that you are performing the work under protest. This will help protect you if things turn out badly in the end.
Mistakes discovered half way through a project result in a lot of finger pointing and someone will come up short. When these types of problems go to court, courts do not require perfect work from the architects, just the same level of care expected of other professionals. If the mistake was due to a gross error by the architect, he may be considered negligent. If the error happened despite the architect exercising reasonable care, it may be deemed an excusable error.
The cost of fixing the work may be shared by the architect, contractor, and owner, if the court (or arbitrator) decides that each party contributed to the mistake.
You mentioned that “it was verbally agreed” to proceed according to the original plan, despite the access problem. Verbal agreements are worth very little in construction contracts. In the future, get in writing any modifications to the contract, side agreements, or any changes to the plans, or anything else material to the contract.
At some time later, the owner told you to stop work. You and the owner, not the contractor, entered into mediation and you both agreed to a settlement that paid you nothing. Mediation is typically voluntary and non-binding. Arbitration and lawsuits are binding and enforceable by law.
Best of luck in finding a mutually agreeable solution to the problem!
Renee says
Architect Hired By Builder Made Mistake – Who Pays?
We are in the process of building our new home. The builder used his own architect. We are about 85% finished. The builder just noticed that a downspout would be needed. The problem is, is that the downspout goes straight down the front of the house and makes a 90 degree turn to bypass the front door. Obviously, this was a mistake made by the architect and the builder just now noticed it. We have already bricked the entire house. We’ve consulted another architect and builder who both agree this is a huge mistake. Our builder has recently fired the architect because according to him, “he’s made too many mistakes recently”. The builder is still trying to convince us to just get the crooked downspout. Claiming we “approved it”. But the downspout was never in the plans that we approved. Nor have we ever discussed this.
So who is responsible for paying for this mistake?
buildingadvisor says
These types of problems are common and rarely have clear answers. As the saying goes, “Success has many fathers, but failure is an orphan.” In other words, when mistakes are made, it’s rare that someone leaps forward to claim responsibility. Finger pointing is the more common response.
Since your business relationship is with the contractor, not the architect, it’s pretty clear that the contractor is the responsible party. Whether the mistake was the architect’s or the contracto’s, or some combination of the two, should not be your problem. That’s up to the contractor and architect to work out.
The notion that you “approved” the plan sounds flimsy to me unless the downspout was specifically drawn or called out on the plans. It’s unreasonable to expect the homeowner to infer this level of detail from the plans – especially if the contractor and architect both missed it. This is the sort of detail that the contractor and architect need to resolve by working together once the problem becomes apparent. The solution must be reasonable and acceptable to the homeowner.
As a practical matter, you will need to negotiate a solution with the contractor. It’s too small a problem to merit legal action, although a lawyer’s letter can sometimes be helpful if negotiations fail. The first step is to agree on what would be a reasonable fix for the problem. The next step is to figure out who pays for it.
If everything else has gone reasonably well, and you are happy with the overall workmanship and price, then you might consider absorbing part of the cost to remedy the problem. This would be a goodwill gesture that might pay dividends when/if other issues arise. You can always make adjustments at the time of the final payment if there are other disputed costs. Also, ending the job on a positive note will help if there are any callbacks or warranty work after the job is completed.
Finally, it’s important to maintain perspective. Although this seems like a “huge” mistake to you at the moment, I can assure you that much larger mistakes get made all the time. A house may violate zoning regulations or encroach on a neighbor’s land. There may be insufficient room for the stairs or structural issues that require thousands of dollars in repairs.
I’m not sure what the best solution is in your case. Slope the gutters differently so the downspout is in a better location? Hopefully you can work out an acceptable solution that looks OK and does not break the bank.
Best of luck with your new home!
SJ says
Design Error Creates Parking Problem – Now What?
We are building a house on land we already own. The company has already designed and built around 40 homes in our development. When we first met to discuss a design, one item was a make-or-break. We wanted a golf cart parking area with a door off the side of the garage. In order to make the extra space, the master bedroom and closet was significantly reduced in size.
Once the framing was done in April, we mentioned to the company that the turn for the golf cart looked pretty tight and were they sure it would work. We brought this up many times over the past few months, and finally, today, they informed us that they tried to park a golf cart, and there isn’t enough space between our house and the neighbors to make the turn into the side parking entrance.
They realize we are “disappointed”. What recourse do we have? We would not have started the process if the architect had told us it wasn’t possible on the lot to make a golf cart parking area in the garage. We are now months into the process, and thousands of dollars!
Any suggestions/advise would be appreciated. We have no idea would to talk to for help.
buildingadvisor says
Sorry to hear about your situation. Unfortunately design errors discovered this far along in the building process rarely have easy solutions. Often the solution is a compromise where each party gives a little.
To begin with, you need to decide what solution would be acceptable to you. Is there a design modification that would allow the plan to work as you like. From what you write, this does not sound promising. You could consider bringing in another architect to propose a design solution that would work.
Would money solve the problem in the form of a discount from the contractor? Or do you want them to remove the golf cart parking area and restore the lost space to the master bedroom and closet. This is probably possible but very expensive. I’m not sure how far along you are in the building process, but the longer you wait the more expensive it becomes to make changes.
If you did not already own the land, you could try to have the contract rescinded due to a breach of contract, have your money refunded, and you could walk away. But since you own the land, this is not an option.
Once you decide what you want you can begin to explore ways to negotiate for that result. Your strength in these negotiations will depend, to a large extent, on the specific language of your contract and how well you documented the issue in dispute. Many contracts nowadays specify that conflicts must go to binding arbitration, which limits your ability to bring a lawsuit.
You say that the parking access was a “make or break” condition of the project. Is it written into the building plans and or specifications? Did you document in writing the many discussions you had with the contractor about this issue?
Another important issue is who hired the architect, you or the contractor/developer. If you hired the architect independently, then he would probably be the party legally responsible for the mistake. The contractor would argue that he was just following the plans. If the architect works for the builder, this would be considered a Design-Build contract, which puts the responsibility more squarely on the contractor.
Once you decide what outcome would be acceptable to you, you can try to negotiate with the contractor and/or architect. At this point, you should carefully document all discussions and communicate as much as possible in writing. If you have a verbal discussion, you should follow up with a written summary of the key points.
I would recommend speaking with a lawyer before proceeding. He could advise you about negotiating tactics and the legal strength of your position, which would determine your strength in negotiations. He can also advise you about the cost and likely outcome of a lawsuit. In some cases, a lawyer’s letter can help you in negotiations. However, once you bring in a lawyer, your relationship with the builder will certainly become more strained. So I would start the process by negotiating for what you want, keeping your lawyer in the background.
Make sure that you have reached an acceptable solution before you release the final large payment to the builder. Withholding funds gets people’s attention. But, again, ask a lawyer about the proper way to do this so you don’t expose yourself to liens or other legal actions from the builder.
Best of luck in finding a satisfactory resolution.
SJ says
Thank you so much for your reply. We sort of thought it would end up being a financial negotiation, but didn’t know where to go for ‘correct ‘ advice. We are tied to an arbitrator, so a lawyer was not an option.
It is just really sad and frustrating when you are finally ready to build ‘ that dream house ‘ and those dreams don’t come true.
I appreciate your insight and time. At least I have a better idea what direction to go in
buildingadvisor says
Most arbitrations result in some sort of compromise. But unless you make a compelling argument, with good documentation of your position, the arbitration may not go the way you like.
Because there is potentially a lot of money at stake here, it may be cost-effective to hire a lawyer to coach you in the arbitration, and possibly to represent you in the hearing as well.
You can read more on arbitration at this link (scroll down): https://buildingadvisor.com/project-management/contracts/red-flag-clauses/#jumper11
The legal self-help publisher Nolo.com offers this overview of the arbitration process.
buildingadvisor says
I agree with you completely that an architect is hired for his professional design skills and experience. So it is reasonable to expect that you will get accurate drawings that the contractor can rely on to build the project. From your description, it sounds pretty clear that the architect made a serious error. If he provided the stamped drawings and submitted them for permitting, he should stand behind them.
From a legal standpoint, however, it is more complicated. Three parties are involved: the designer, the contractor, and the owner. In the absence of written contracts, responsibilities and liability can get pretty murky. There are many possible scenarios. How, exactly, did the architect try to blame you for the error?
Since you did not have a written contract with the architect, he might claim that he was merely providing you with “schematic” (conceptual) design work, not with working drawings intended for construction. Or he may claim that he relied on information provided by you and was just hired to provide drawings for a plan that you created. Architects can provide a variety of different services, each carrying different liabilities.
Also, the contractor might be partly at fault for not recognizing the error sooner. As I mentioned earlier, most architects stamp their drawings as VIF, that is “Contractor to Verify in Field”. This does not get the architect completely off the hook for errors, but may reduce their liability in some situations.
Again, best of luck in finding a satisfactory resolution.
William says
Taking Architect to Small Claims Court Over Error
Our architect drew the existing roof as a 6/12 pitch on our remodeling plans, which he stamped and submitted to our Town. During construction, the builder noticed it was NOT as drawn and the roof was 4/12 leading to over $4000 in additional cost. We are taking the architect to Small Claims Court. Do we stand a chance of getting this BIG cost back??
buildingadvisor says
It’s unclear from your email exactly what happened. Is this new construction or remodeling? Was this an existing 4/12 roof that the architect drew as a 6/12? What, specifically, drove the added costs?
There is no clear-cut answer as to who pays for an architect’s mistake. It may the architect (or his Errors & Omissions insurance company), the contractor, the owner, or some combination of the above.
It depends, in part, on the specific contract language and on the nature of the error. In some court cases, architects are found financially responsible for errors, especially if work needs to be torn down and redone. However, if the mistake was an omission of work that the owner would have had to pay for anyway, the owner often has to pay.
The standard of care provided by the architect is also an issue. Courts do not require perfection of architects, just the same high level of care expected of doctors, lawyers, and other professionals. Whether the mistake was an act of negligence or happened despite the exercise of reasonable care, is a matter of legal judgement.
In addition, most architects stamp their drawings “Verify in Field” (VIF) or similar language and state in their contract that the contractor is to verify all measurements in the field and report any errors to the architect and/or owner. This is an attempt, not always successful, to pass liability for errors to the contractor. If the contractor signs an agreement accepting this liability, he now owns the architect’s mistake and may be found at least partly liable.
However, unless one party accepts responsibility and offers to cover the costs of the error, or the three parties are able to reach an agreement, then it is up to a court to decide based on the specifics of the error and contract. The outcome is difficult to predict.
I have seen professionals step up and accept responsibility for their errors; I’ve also seen finger pointing in these situations and attempts to hide behind obscure contract language. As the old saying goes: Success has many fathers (or mothers); but failure is an orphan.
I’m not sure of your prospects in small-claims court. A lawyer may be able to predict the outcome and offer advice on your best strategy.
Best of luck in recovering the costs! And please let us know how you make out in court.
William says
I’m sorry I was not clear. It was for an addition to the existing 4/12 roof that he drew as 6/12. The addition roof DID have to be disassembled because as drawn, it did not work. The architect sent someone to look at it and his exact words were “wow, he screwed up” The cost was for the correct pitch roof to be built (mat & labor) and the additional cost for interior work.
We had no contract with this architect. And he did try to blame us! How??? We didn’t draw and stamp the plans. The Town building inspector, the bank inspector, and our builder said the architect drew them and that’ what we paid $900 for! Its a large amount of money to pay for a professional’s mistake.
buildingadvisor says
Sounds like and the architect messed up in his measurements and you are on solid ground in your claim.
It’s unfortunate that he is fighting you on this. I wish you the best of luck in recouping your loss.
Please let me know how you make out in Small Claims Court if you go that route. In most states, you can argue your own case in Small Claims Court or bring a lawyer. While it is wouldn’t be cost-effective to have a lawyer represent you in a case of this size, it might be worth it to get a lawyer’s input beforehand. If you go that route, Ask the lawyer for an estimate of the time and cost of getting his/her advice.
Nolo.com, a self-help publisher of legal advice, has a lot of good legal self-help advice for consumers. This article on Small Claims Court might be of interest: