Architect malpractice

Architects are liable for breach of contractual and other obligations. As the building owner’s agent, he has affirmative duties to comprehensively advise and clarify matters to his principal during the entire term of the contractual relationship. Courts will find architect liability in cases budgeted cost overruns, failure to examine the suitability of the building site, deficient economic viability of the construction project, false audit attestations on partial payment invoices and in a number of other situations.

The obligation to clarify includes the obligation to disclose and clarify one’s own errors. The case law provides that such failure to disclose will be regarded as evidence of malice. “If the architect employed to supervise construction fails to mention during the acceptance of performance that he has not performed his duties and undertaken no controls, then he has maliciously hidden the defect of his own performance during delivery and inspection” (judgment of the German Supreme Court, Az.: VII ZR 345/03 dated June 17, 2004)

It is well-settled that if the architect charged with monitoring construction has overlooked obvious or frequent construction defects, or evidence of construction defects that appears during the course of construction activities, this will constitute prima facie evidence of deficient construction supervision. “He must (…) monitor the work in an appropriate and reasonable way and assure himself through regular inspections that his instructions have been properly followed. In the case of important or critical construction measures that experience would indicate are fraught with a high risk of defects, the architect is bound to exercise a higher degree of alertness and to a more intensive level of awareness of the need for construction supervision” (decision of the High Court Stuttgart 5 U 22/08 dated April 21, 2008)

The architect cannot avail himself of the claim of willful ignorance. “Rather, the architect – as defendant and its partner here – cannot escape his contractual duty to disclose upon the delivery of the finished project by maintaining deliberate ignorance. Defendants were obliged to disclose to the plaintiff their own lack of knowledge due to failure to supervise construction during the sealing work done on the balconies.” (decision of the district court Berlin 5 O 529/02 dated December 9, 2004)

If the architect does not do anything about the defects of which he is aware this too will justify a finding of malice. “The construction supervising architect acts maliciously if during the execution of the construction he recognizes defects in construction performance, does not demand their cure by the construction firm and does not direct or monitor any defect removal work and, despite continuing defects in the construction, does not advise the building owner to refuse acceptance of delivery of the construction performance.” (decision of the High Court Rostock, Az.: 4 U 82/03 dated September 27, 2005)

If the court finds malice, the statute of limitations is significantly lengthened. The architect that has acted with malice can also be liable up to 30 years without insurance protection. In addition, malice is ordinarily excluded from coverage of the architect’s professional liability insurance.

We consult with architects and together we clarify in detail the scope of their duties and work out a strategy to defend claims that might be brought against them.