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Working with Unlicensed Architect

mwood

Considering working with an unlicensed, uninsured architect for a home renovation, and looking for some help working through the potential issues (we would have an expeditor act as architect of record).  

So, let's use a hypothetical situation: let's say after construction, there was some problem with the work that resulted in damages to a neighboring apartment, and that neighbor decided to sue both the contractor and the architect. Would the expeditor/architect of record be "on the hook" or is there risk of the unlicensed/uninsured person getting dragged in? 

I found this similar thread (http://archinect.com/forum/thread/100571/liability-insurance-unlicensed-designer) but trying to consider the issue from the perspective of the owner. 

Appreciate all help!

 
Jun 27, 11 6:56 pm

The important thing to remember to put this in perspective is: anyone can sue anyone for anything.  Just by existing in a society you accept that litigation may be targeted at you.  In your scenario: the neighbor might sue your client, who could sue the AoR, who could sue your employer, who could sue you - or the original neighbor could bundle you all up and sue you all together.  In reality, that chain of lawsuits is only going to cost everyone far more than working out a resolution to pay damages.

As a not-registered designer, you don't have to worry that your LICENSE will be at stake if you get sued.  For a registered architect, loss of license can devastate their career.  For an unlicensed designer, a lawsuit can be financially (and emotionally) draining, but not career-ending.  Don't do anything maliciously wrong, blindly ignorant, or illegal, and accept the risk that comes with getting something built in the world.  

 

Jun 27, 11 8:26 pm  · 
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babs

By law, there's no such thing as an "unlicensed architect"

Jun 27, 11 8:27 pm  · 
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logon'slogin

What happened?

Jun 27, 11 9:14 pm  · 
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mwood

Thanks, Donna ... and babs - I guess I mean a "consultant" acting effectively as an architect

Jun 27, 11 9:56 pm  · 
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toasteroven

they aren't acting as an architect if they aren't licensed.

Jun 28, 11 10:04 am  · 
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On the fence

Sure they are acting.  It's playtime.  Everybody pretend to be something they aren't.

Jun 28, 11 10:47 am  · 
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mantaray

Wait Donna - mwood in this case is the OWNER, not the unlicensed designer, correct?

 

Personally if you ARE going to go with an unlicensed designer - and I was one for years so, speaking from experience - I would NOT pick an expeditor as my AOR.  I would pick a REAL AOR as my AOR.  You need SOME protection built into the proposal somewhere.  Pick someone who has practiced as an architect, not just someone with knowledge of code issues.

 

Also in this scenario, DO NOT shortchange yourself by going with a cheapie, fly-by-night contractor.  You will need a good contractor (who actually knows construction detailing, not just a glorified carpenter, which many small-time residential GCs are) to make sure that someone who knows what they are doing is executing what will likely be a not-very-well-detailed drawing from the designer.  The reality is that unlicensed designers can be very good - but they can also know next to nothing.  And unless you yourself are very experienced in home-building, you won't know the difference.  (The license gives you, the client, confidence that the designer has at least met the minimum of professional standards to do his/her job.  With an unlicensed designer, you have no way of knowing.)  So protect your home by hiring a true GC - that is, someone personally experienced enough to oversee all parts of the house under construction - to make sure the thing is appropriately detailed.

 

Also, make sure you make it clear contractually that the contractor must build to whatever standard - NOT that the contractor can just follow the drawings.  Because the drawings will likely not have enough actual construction detail in them - and if your contract with your GC is based on those drawings, then he will be very difficult to sue for any crazy leaks, structural failures, etc that are due to the lack of detail in the drawings.  (Unless you make him contractually obligated somehow to build to accepted standards of construction.)

Jun 28, 11 11:20 am  · 
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mwood

mantaray - thanks for the advice. And yes, mwood = owner.

Regarding expeditor AORs vs real AORs -- assuming we go with a real AOR, does this mean that the AOR should effectively assume liability for the design work (not the construction/implementation of the design, as that would be the contractor, I assume) since they are signing off on it? If not, then I am a little confused about what value they are adding to the process and the existence of AORs generally speaking (besides assisting unlicensed designers).

I am looking at an AOR contract and it is incredibly vague w/r/t liability, which is causing me to be a bit worried that there is a liability gap with regard to the actual design/architecture work.

And we absolutely plan on getting a good contractor.

Jul 5, 11 3:39 pm  · 
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Oh.  I TOTALLY misunderstood.  I thought I was talking to an employee, but mwood, you're the owner and you're hiring someone unlicensed to do your work?  Why?  It can't possibly be saving you any money, in this economy.

 

(Small rant:

"...assisting unlicensed designers". That's rich.  You'll happily spend money on a good contractor but skimp on hiring a licensed professional to make sure your building meets life safety LAWS.

Sorry, it's been a crappy day for me in my profession so I'm dumping on you mwood but seriously, why hire a designer at all unless you're hiring one that brings peace of mind AND talent to the project?)

The short answer is yes, the unlicensed designer can be on the hook for a lawsuit by your neighbor and you also look like an easier target for responsibility because because you knowingly hired someone w/o a license.

Your best bet, as always, is to work with someone who has a great reputation and comes with high recommendation from your friends/family/coworkers etc.  If they have a reputation for providing quality work you can bet your butt they won't risk that reputation by screwing up your job.

Also listen to mantaray.  That's some smart advice up there from someone in the trenches.  And, you can use AIA documents: use both the Architect/Owner contract AND the Owner/Contractor contract, which reference each other and thus totally clear up confusion over who has responsibility.

 

Ugh.  Bad day.

Jul 5, 11 8:01 pm  · 
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trendzetter

If you cant afford an Architect, you wont be able to afford a decent GC.  Projects like this are doomed from the start.

Jul 5, 11 8:47 pm  · 
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Regarding expeditor AORs vs real AORs -- assuming we go with a real AOR, does this mean that the AOR should effectively assume liability for the design work (not the construction/implementation of the design, as that would be the contractor, I assume) since they are signing off on it? If not, then I am a little confused about what value they are adding to the process and the existence of AORs generally speaking (besides assisting unlicensed designers).

this is very problematic. esentially you want to hire someone to cover a designer's e&o or any other possible incompetency, not for his or her architectural design services. you basically want someone you can sue if anything goes wrong.  and audacity to ask "what they are bringing on the table?" that is exactly what they are bringing on the table... but you have to play with their rules and professional obligations. like it was said earlier by donna , this AOR is taking a lot of risk for entering a contract with you under these specific services s/he is providing to you. Basically you need to bring something on the table for the AOR... compensation for their practice and professional services.

Jul 5, 11 9:28 pm  · 
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yes the AOR effectively assuming the liability of the design work. that's why they have to provide the instruments of the service (drawings, specifications etc..) under their title and they have to be prepared under their responsible control.. Meaning, your designer will put the design input but the architect will provide the documents, stamp and sign them..

Jul 5, 11 9:42 pm  · 
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if you are in california, this is where all these are explained more precisely than my posts. all other states are closely similar...

http://www.cab.ca.gov/pdf/publications/architects_practice_act_2011.pdf

Jul 5, 11 9:50 pm  · 
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pg 63.


§ 151 Aiding and Abetting
(a) For purposes of Sections 5582 and  5582.1 of the code, aiding and abetting
takes place when a California licensed architect signs any instrument of
service which has been prepared by any person who is not:
(1) a California licensed architect or civil engineer or structural engineer, or
(2) a subordinate employee under his/her immediate and responsible direction,
or
(3) an individual, who is associated  by written agreement with the architect
and who is under the architect's immediate and responsible direction as
described in subsection (b) of this section.
(b) The requirements of "immediate and responsible direction" as used in this
section shall be deemed to be satisfied when the architect:
(1) instructs the person described in subsection (a) of this section, in the
preparation of instruments of service, and
(2) the architect has exercised the  same judgment and responsibility in
reviewing all stages of the design documents and other phases of the work California Code of Regulations as required by law, and which would normally be exercised if he/she personally performed the required tasks

Jul 5, 11 10:03 pm  · 
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postal

so, no one has pointed to the (incredibly limited and difficult to find) information the AIA has for Owners... you may also want to check up with your local AIA chapter, they may have some more information for you... http://howdesignworks.aia.org/  the "Questions to Ask your Architect" under "AIA Tools for You"  may be of help.  Anybody else have any other "client education" resources?  Also, this is not really my area of the industry, what do other architects think about the AIA client resources?

Jul 5, 11 10:08 pm  · 
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yes here is one..

other "client education" resources? 

http://www.cab.ca.gov/consumers/index.shtml

i think AIA has to step up educating the public about architects and their services, necessity. saying "i am an AIA architect" in bus stops won't do it. architecture as a widely used consumer product has not been clearly and legislatively introduced to public. a lot of people out there can't even spell architecture. it should be very common to use of architect's services and not only in 15% of buildings..

but, goodness, everybody is an expert on design.;.)

Jul 5, 11 10:19 pm  · 
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jcboley

There is no such thing as an unlicensed architect.  License = Architect.  Period.

In medicine, no one speaks of an "unlicensed physician" as if they are more or less the same as a licensed one.  Would you go under the knife of an "unlicensed surgeon?"

Your whole discussion stinks. mwood you're hoping the licensed architects will tell you that your boy will be OK, and not really held liable if he f's up and creates a malpractice suit - the expeditor will take the hit.  Do you have any idea how offensive this is?  Over 40% of the architects in the US are out of work, and you want us to tell you everything will be OK if you cheat and use an expeditor to get around hiring a licensed architect to work with your designer?  Donna Sink's remarks are on point. 

Brothers and sisters, don't give mwood any more free advice.

With all due respect to them, the unlicensed person you hired is not an architect.  (In this case, you're saying it, not them.) They may have a architectural degree, real experience, etc, but for anyone say they are an 'architect,'  they must have met the state's requirements and passed its architecture licensing exam.  Period.

 

Orhan is right. If the expeditor is the AOR, they are the legally liable architect. Period.  

Caveat emptor.

Jul 5, 11 11:42 pm  · 
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postal

hold on there jc.  It's not so cut and dry (nor nearly as punctuated).  Sure our state boards draw definitive rules as to when an architect is required, but by no means is it that black and white to owners and architects.  We're kidding ourselves if we think we're adding value for every little home renovation.  I think manta expresses some decent points about risk.  I think its an owners right to choose a poor contractor or a nephew halfway through architecture school to draw up drawings.  What is lacking out there is the free advice that owners need to make an educated decision about their project.  Thus, mwood questions on the 'nect.  I think you should cut mwood a little slack for his intentions and questions.  I think as architects we've all had to do a lot of client education up front.  And by not hearing what mwood has to say, we're missing an opportunity to learn what a client thinks about us and our services.

thanks for that link orhan.  I think something that needs to be emphasized a little more in some of these resources is how an architect can protect an owners interest through the construction process.  I think something explaining our "triangle" of checks and balances would help clients understand our role a little better.  this would seem to be a huge benefit to the lay-client to protect themselves from getting hosed by a contractor.  i do recall a brief flash movie that outlined the AIA contracts and how they work.  I thought it did a good job defining roles.

Jul 6, 11 4:47 am  · 
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mwood

There have been many unfair assumptions in prior responses.

POSTAL -- thank you. As you mention, there are many situations where someone might want to use an unlicensed "architect" and it's not just because one is too cheap to pay for a licensed one. In our case, we are choosing to work with this person because we have a personal relationship with them and we would like to support them, and NOT because we are trying to cheap out. And I doubt it will be cheaper, in any case.

And as MANTARAY said, he was unlicensed at one point and is now licensed (which I'm sure will be the case with the person we are using) -- everyone has to start somewhere.

As we have already decided to go with this person, the only way we can work with them is to use an AOR. In trying to find an AOR (who we plan on compensating properly for the risk they are taking), I was merely trying to find out what we should be looking for in the contract. The AOR contract I have seen, as I mentioned previously, did not seem to "add any value" and so that left me concerned.

Jul 6, 11 11:20 pm  · 
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quizzical

mwood: I think the simple answer to your question is this: in the event of a problem, the primary recourse will be through the AOR, and that architect's insurance. The AOR, in turn, would be able to pursue reimbursement of damages from the unlicensed designer, through his own legal action against that party. However, if the unlicensed designer is both uninsured and relatively asset free, then the full burden of responsibility will rest with the AOR.

Were I in your shoes, the question I would ask myself is: "what would the AOR need, in the way of compensation and supervisory services, to make this risk exposure seem reasonable?"

Jul 7, 11 9:44 am  · 
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Wilma Buttfit

Is a licensed architect even needed? Usually a home renovation doesn't need a licensed architect. If not, you as the owner are free to hire a unlicensed designer. Do make sure the contractor is licensed and insured, this is much more important, especially if the designer is inexperienced. You should also talk to your insurance agent about your risk exposure in the project, because as the owner, you are not exempt from liability no matter who you hire.

Jul 7, 11 11:02 am  · 
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i'm with beccabec. i'm not sure i understand all the hub-bub. he doesn't need a licensed architect for his project and he wants to work with a friend. cool!

unless his friend is proposing removal of all of the structural walls (thus the liability question), i'm not even sure why he'd need an AoR. 

i worked on houses by myself prior to registration. i used a structural engineer and had competent contractors involved.

there are projects where an architect is a choice, not a necessity.

Jul 7, 11 12:16 pm  · 
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Steven, the OP wants somebody to be liable for the project, an E&O type of insurance liability from a registered architect, that is. And, OP does not seem to understand the gravity of that assignment/contract the so called AOR is undertaking. That is the "hub-bub.." 

We so far don't know how complicated the project is or what it is. We don't really know if the OP's local building dept. requires a registered architect for the particular job etc.. Just because OP is a client does not mean the project is a SFD. It could be easily a project with multi family housing like the next door apartment building thus requiring a registered architect if more than 2 storeys and more than 4 units.

This person has already got valuable advice free for just posting here. It show how architects are helpful.

Jul 7, 11 1:38 pm  · 
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mwood

We do need a licensed architect b/c of city requirements for the scope of the project we are undertaking, though no structural walls will be moved.

I do understand the gravity of the assignment/contract for the AoR, however two things -- (1) I had an AoR contract in front of me that seemed to skirt the issue of liability entirely, hence my question about the usefulness of that specific AoR and appropriateness of that AoR contract (again, because presumably part of what they are compensated for is that)  (2) it's not like we're somehow going to pull a "fast one" over on this AoR -- I would assume they would only accept the business if it was worth it to them and they were comfortable with the risk.

Also I do appreciate everyone's advice, and never implied that architects are not helpful. I would be using a regular, licensed architect were it not for the friend.

Jul 7, 11 2:03 pm  · 
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Wilma Buttfit

I think that since you want to use an unlicensed designer, you as the owner needs an added level of sophistication to understand these risks, responsibilities and the contracts. If you don't have that, as with any contract you don't understand or are wary of, hire a lawyer to help you understand it.

Jul 7, 11 2:11 pm  · 
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you should get a better contract from a licensed architect. have them spell out your needs in the contract and if you are so unsure, have an attorney who understands these type of contracts look over it.

also, very important... make sure you are not risking a good friendship. because when money, deadlines, work performance, etc.., involved, things change. there are many wise words about this almost in any society. friend could also understand this and take a unique position of being your personal design consultant and work with the architect as a design consultant, client representative on design decisions.

Jul 7, 11 2:11 pm  · 
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mwood

beccabec and Orhan - thanks to this thread I am thinking we will need a lawyer.

Jul 7, 11 2:18 pm  · 
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but make sure the lawyer understands the construction laws and contracts.

Jul 7, 11 2:20 pm  · 
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shellarchitect

great thread!

 

Jul 8, 11 10:13 am  · 
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mantaray

Wise words from Orhan and beccabec.

 

Honestly the contract worries aren't what truly worry me, because:  a) no contract is foolproof; b) I trust that once you get a competent AOR and look over his/her contract with your experienced-in-construction-lawyer, you'll arrive at a satisfactory arrangement; but most importantly because c) the best way to mitigate potential risk is to have the thing built correctly in the first place.  

 

Which brings me to what I feel SHOULD be your biggest worry in this undertaking:

The greater need to hire a truly competent GC given the lack of architectural experience on the part of the designer.

 

Again, having been there myself, I can tell you that there is definitely a gulf in detailing knowledge between a designer just starting out & an experienced architect.  This is the gap that is cause for concern in your endeavor.  (A young architect can certainly be incredibly talented at design, but I'm not sure I've ever met one that is both knowledgeable about and realistic about detailing including myself (much as I thought otherwise at the time)).

 

So my best recommendation to cover both your ass and your unlicensed friend's ass is to 1) hire a good, true AOR - that is, a practicing architect who is experienced in the type of construction you are undertaking - not just some expeditor who really just works on code issues but happened to get his license back in the 60s and only dusts it off nowadays to stamp drawings for a fee.  

2) hire a knowledgeable, true General Contractor.  I'm talking the guys on This Old House - THAT's what you're looking for.  If your GC shows up to the interview and talks glibly like "oh dat's no problem, yeah, we can get started next week and bang this baby out in 6 weeks" or rolls out of his truck having literally written out his to-do list on the back of an envelope he fished out of the passenger footwell, do not hire him.  Given that your designer will lack experience to determine who is going to be a good contractor, and you presumably lack that experience as well, it is all the more important to see point #1 and hire a good AOR who can advise you on who is and is not a good G.C. for your project.  Likely the AOR will recommend a few GCs and you can have them each bid & interview.  Be very wary - I've seen good architects and I've seen bad architects, but frankly the difference between a good & bad architect is not as wide as the staggeringly vast difference between a good GC and a bad GC.  A bad GC can break your project, your budget, and leave you liable for years - and you won't have an architect on-site to stand between you and protect your interests.*

 

 

*This is truly where a lot of the value of an architect lies, although unfortunately we as a profession have done an awful job educating the public about it.  In the typical client-architect-GC relationship, the architect sits contractually between the client and the GC.  The architect thus protects the client to a huge extent from any potential issues with construction and represents the client to the contractor when issues do pop up.  You'd be amazed how valuable this relationship actually is on the job site - and yet I find it's among the first of the architect's services to inevitably get cut when the client starts looking to try to get the building he/she wants for less money than it actually costs.  It's a true shame because it's a penny-rich, dollar-poor move for the client in the long run, and I have seen clients come to regret it.  Ah well... just a side note.

 

 

 

Jul 8, 11 7:52 pm  · 
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mantaray

Also, I'll tell you what, if you name what city you're working in I bet you anything you can find a good, experienced AOR that wouldn't mind taking on this project on this very website.

Jul 8, 11 7:56 pm  · 
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I am a building designer ( NOT architect ),

In Oregon, we have actionable provisions of tort, negligence, contractual or otherwise. The bottom line is - if the designer claims to be able to perform the service than he/she has made a claim to knowledge and skills.

Several legal facts comes to play. With a licensed architect, there is prima facie evidence of knowledge and skill and the case can be a "prima facie case". However, a building designer doesn't get immediately off the hook nor necessarily treated quite like just anyone else. Evidence of IMPLIED CLAIM to knowledge and skills.

When a house is designed, the same knowledge and skills are necessary to protect and safeguard unnecessary harm regardless of who designs the house or any other exempted building. Building Design is indeed considered a profession although NOT a licensed profession. There is precedented cases and a frame of reference for the knowledge and skills. When the scope of work that a building designer provides is essentially identical to anything an architect does on exempted buildings, there would not be a difference in the needed knowledge and skills.

In building design, this would involve knowledge and skills commonly in but not limited to, building materials, architectural history, structural design, administration of services and contract, theory and practice of creation of specifications, building systems, electrical systems, mechanical systems, development of project program, existing conditions assessment of site and existing buildings, research on al levels including research of CC&R, regulations, codes, laws affecting building but also on the materials and systems used in the building, communication and management of project, leadership, coordination with consultants and all stakeholders involved, development of construction documents, fundamental and competent understanding of the local, state and federal laws, regulations, codes, and policies applicable to buildings and related structure, structural calculations, etc.
 

This is verified through a record of actual practice among the numerous building designers across the country. There is also the AIBD and the NCBDC certification program. By me saying this, I am creating a reference of knowledge and skills customary to performing services involved in building design. In any case, the frame of research and background of what building design including historic references to the present.  If the person does not possess the knowledge and skill to perform the work competently without accruing negligence, he/she only has three legal options - 1) Obtain the knowledge and skill prior to performing such work, 2) Hire/Contract someone that has such knowledge / skills that will be responsible for the parts exceeding the area of competence of the designer or 3) Promptly notify the client of his/her limitations and terminate any further involvement.

In addition it must be noted that Standard of Care (the legal concept used in ALL cases of negligence / tort) is defined as:

the degree of care or competence that one is expected to exercise in a particular circumstance or role
 

So the degree of care or competence that one is expected to exercise in a particular role of building design is of 1) prudence, 2) upholding and protect the HSW of the client and public with the duty of care when involved in work of substantial HSW and financial investment and 3) Must meet or exceed the minimum legally established standard of all the applicable local, state and federal laws, regulations, codes and policies in regards to the designing of such buildings. It is customarily the nature of upholding prudence and to assure that care and competence they must possess the necessary knowlege and skills in (BUT NOT LIMITED TO): building materials, architectural history, structural design, administration of services and contract, theory and practice of creation of specifications in the construction documents, building systems, electrical systems, mechanical systems, development of project program, existing conditions assessment of site and existing buildings, research on al levels including research of CC&R, regulations, codes, laws affecting building but also on the materials and systems used in the building, communication and management of project, leadership, coordination with consultants and all stakeholders involved, development of construction documents, fundamental and competent understanding of the local, state and federal laws, regulations, codes, and policies applicable to buildings and related structure, structural calculations, etc. as would be customarily used by ANY prudent person who offers to perform design services for such buildings INCLUDING licensed architects.

There is a legal precedent that when a case involves significant HSW, all persons practicing such shall be held to the highest reasonable standard of care and any person who commercially engages in a profession that involves a significant level of HSW shall be held to the highest standard in accordance with reasonable expected public demand.

As the home owner and client, you are owed and you are in reasonable expectation that any person who offers to design buildings have the necessary knowledge and skill. He/She that offers it by virtue of offering to design such building makes an IMPLIED CLAIM to having the knowledge and skill. So if he or she fails, is also SUBJECT to Consumer Protection Law provisions involving FRAUDULANT and other unlawful trade and practices. It is customarily illegal to offer services which you do not reasonably possess the knowledge and skill. Everyone has the duty of care to possess the knowledge and skill to perform any work before advertising and/or offering it. If you don't have the knowledge or skills, you do not have any legal right to offer to do it.

 

 


 

Jul 11, 11 12:48 am  · 
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A legal term of IMPLIED ASSERTION can be implied. That is what an implied claim is.

If Joey puts up an ad that offers lawn mowing services. Than it is an implied assertion within the advertisement claim that Joey has the knowledge and skills to perform such services. Therefore,it is within REASONABLE ASSUMPTION that there is an implied assertion to the knowledge and skill as it is reasonable to assume that a person would not advertise or offer to do something they can't do. It would be a breach of good faith and would be fraudulant of Joey to advertise and offer to perform such service if he/she did not have the knowledge and skills to perform the service advertised and offered.

One single string of act and failure to perform opens up a can of worms.

I am not a lawyer but it is reasonable that there is an infered assertion that I have some understanding of law.

You are in reason to expect that when someone is offering a service such as building design, that he / she has the necessary knowledge and skill and the person has the duy of care to have that knowledge and skill to perform the service OR hire/contract someone that will OR not to advertise and/or offer such services and discontinue such conduct and terminate and sever any further involvement with the client after proper notice of terminating any contract after notifying the client that he/she can not perform such work.

 

 

Jul 11, 11 1:17 am  · 
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Bruce Prescott

One more note:  a registered/licensed architect is personally liable for the work they sign meeting the standard of care regardless of whether it says so in the contract. (Which is not to say that you should not expect a clear contract)

 Architects may use the contract to limit liability to a specific dollar figure, especially on small projects, and clients, especially government clients my try to elevate the standard of care through contract language.

Jul 11, 11 1:30 am  · 
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I'll add a note: ANY person offering to do ANYTHING in any form can be REASONABLY INFERRED that the person offering to perform ANYTHING is claiming to possess the knowledge and skill to perform and it is in within reason without guilt to reasonably assume in good faith that the person would follow through.

 

 

Jul 11, 11 1:55 am  · 
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