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.
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.
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