What a great piece of land! What a place to build your project! You just need to get the architect’s plans and the specifications and find a builder. Right? Or wrong?
Slow down.
The contractual morass that is a construction project of any magnitude must be carefully considered from the start. Even at the stage of retaining an architect or an engineer, the owner should be reviewing in detail the obligations and, importantly, the limitations the owner is taking on.
Like in many other settings, standard form contracts abound in the construction law world. An owner taking on a multi-million dollar project should be aware that, often, in standard form architect agreements, there are clauses that may limit the potential liability of an architect. The liability of an architect may be limited to the amount of his or her insurance and the time when the owner may make a claim might be limited to two years after substantial completion of the project.
Courts have shown themselves increasingly willing to give effect to this sort of contractual limitation of liability. In one case, Howe Sound School District No. 48 v. Killick Metz Bowen Rose Architects and Planners Inc., 2008 BCCA 195, the architect’s standard form contract with its limitation as to when an action could be brought was upheld and the claim against the architect was struck.
In another case, Swift v. Tomacek Roney Little & Associates, 2014 ABCA 49, the $500,000 limitation of liability clause in the architect’s retainer agreement worked as against the husband, Mr. Swift, who signed the agreement but not as against the wife, Ms. Swift, who had not. Moreover, the engineering subconsultant was not able to shelter itself under the architect’s limitation of liability clause which protected the “Designer”.
In the end, everything depends on the wording of the contract you have entered.
So before you launch into the design of your project, check out the agreement of your prime consultant carefully. Make sure that you know what you are getting into and negotiate better terms if the ones presented are not to your liking.
Art Grant
