The role of the architect and the consulting engineer in real estate construction
The architect and the consulting engineer are two key real estate players, as they contribute to the development of the works and ensure that the aesthetic, administrative and legal aspects of the construction are respected. Thus, they are "builders" expressly covered by Article 1792 of the Civil Code and a specific regime is applicable to them, provided for by a special law of 13 December 1989.
A. A specific status
Since 1989, there is an obligation in Luxembourg to use the services of an architect and / or consulting engineer if the proposed construction project is of some importance. The idea is to ensure the quality and aesthetics of the project.
The intervention of the architect is in principle obligatory for the realization of an architectural project during works subjected to the procedure of the authorization of building, and not involving any particular technical problems. Its purpose is the design and construction of buildings and spaces that meet the criteria of beauty and harmony, comfort, utility, solidity and durability.
The consulting engineer, meanwhile, intervenes on a project of a technical nature which includes roads, railways, bridges, underground constructions, works of feeding, evacuation and water treatment etc. He is involved in the analysis, design, planning and implementation of projects in the areas of spatial planning, urban planning, construction and infrastructure.
Two exceptions to the mandatory intervention of the architect and the consulting engineer are allowed: if the load-bearing structures, facades and roofs of the building are not affected, but only inside a dwelling, the use of these professionals is not mandatory. Also, when a construction takes place on a private ground for a sum lower than 51.661 euros, one can abstain from appealing to them.
B. The remuneration of the architect and the consulting engineer
In Luxembourg, a scale of fees had been published by the Order of Architects and Engineers concerning the remuneration of architects and consulting engineers, but it has now fallen into disuse, because contrary to the principle of free competition and freedom prices.
If the customer has the opportunity to fix with the manufacturer a fee for the service that will be provided, the application of a percentage on the price of construction remains the practice by far the most widespread.
It is however a principle in the sector to which the customer can not derogate, that of the onerousness: the architect and the engineer have the right to be paid from the beginning of their work, whether simple sketches and exchanges of preparatory ideas, or more advanced services. This principle is presumed, i.e. that the builders do not have to bring back documents attesting their implication so that this one deserves salary: the mere consultation of the professional suffices to owe him a remuneration. Nevertheless, if the professional fails in his mission, no payment will be due.
C. Obligations vis-à-vis customers
As construction is a very large activity as a whole, it is important to provide for the signing of a contract that sets out in detail the obligations arising from the field of intervention of these specialists. We will quote the most important ones.
1. Obligations of the architect
a) Development of plans and obtaining permission to build
These two missions often go hand in hand. Once a building permit is required, the use of an architect is mandatory, so that it develops the project.
In other words, if the client has the opportunity to request authorization from the administration himself, a professional in architecture or construction engineering is the only one able to establish and sign the plans.
The intervention of a professional is necessary, because he only knows the administrative and legal requirements in the matter in order to respect the technical standards and the rules of the art. It must keep abreast of the normative evolutions and must apprehend the regulatory changes which take place by informing all along the construction site with the municipal administration.
Even in cases where the architect's mission is limited to the simple genesis of the plans, he must always ensure that the proposed works are feasible and free of defects. Given the current state of knowledge, the architect will verify that the duration and stability of the project are viable. Also, the new building must not cause disturbances in existing contiguous buildings.
Another important component of the architect's minimal missions will be to design a structure in compliance with the law and the urban planning regulations in force. Nevertheless, the architect is not expected to be omniscient: if an exceptional legislative requirement is violated that is unknown to the professional and is not directly related to the specific technique of construction, he can not be held responsible for it, because this information exceeded his field of knowledge in common law .
b) The duty of advice
Whatever the scope of the architect's mission, he is obliged, like any other professional, to consult.
In this respect, three specific tasks are incumbent upon him.
It is first of all for him to clearly inform the contracting authority of the compulsory obtaining of the various usual authorizations necessary for the planned construction; it is not enough for him to warn him.
He must also warn his client of any incidents that may occur or occur during his mission.
Finally, he must design a project that coincides with the budget set by his clients. The financial means of the latter must be determined or determinable in advance to avoid a conflict of interest during construction.
c) The duty to supervise the construction site
Most often the architect has a complete mission to not only design the realization, but also to monitor its execution. The good execution of the realization of the work is thus ensured.
The architect is expected to visit the premises on a regular basis without having to be there permanently. Indeed, an effective and attentive surveillance allows him not to be held responsible, jointly with the contractor, in case of defects that could have been detected earlier.
The analysis of the constraints of the soil is the most important example of the duty of supervision weighing on the architect. He must search by different studies, analyzes and surveys if the state of the ground presents no defect and allows the planned construction. For this purpose, he must move on the ground. In case of need, he should advise the owner to call on the services of another expert, eg a surveyor. Construction plans will be developed further to this research.
If the architect demonstrates that he has undertaken all the necessary preliminary tests, but that the floor is not suitable for the construction, despite diligent attention, his responsibility will not be engaged.
2. Obligations of the consulting engineer
a) Design and control of the structure
This mission is to give advice, to establish projects and expertise and to prepare and monitor the sites. In the event that the professional is satisfied to carry out statistics, the qualification of constructor is not attributed to him.
The consulting engineer will have, after the preparation of the work, submit to the municipality concerned by the construction an overall study which goes from the preliminary draft to the supervision of the works carried out by a contractor.
It can carry out its activity within the framework of a design office or a technical control office.
b) Design and technical inspection offices
As part of the design offices, scientific and technical tests are carried out: calculations and drawings are undertaken to explain the choices that have been made.
The technical control offices, meanwhile, are set up to avoid the risk of damage by the verification of construction rules.
Luxembourg law does not provide for compulsory use of these offices, but it is very common for insurance companies to use them to cover the ten-year guarantee due.
The main missions of the offices are among others the control of the tightness, the verification of the installations and equipments, the visual controls and the denunciation of the anomalies identified. Precisely, technicians must prevent technical hazards to reduce the risk of disorders, which would directly engage their decennial responsibility. This is really an obligation of result: in case of default resulting from insufficient control, the responsibility of the person concerned is directly engaged.
D. The Liability of the Architect and the Consulting Engineer
The architect will be liable for design defects in the event of a plan defect, but only if the plans have been rigorously followed by the contractor and the client. In other words, if changes have been made by someone other than the architect, and a damage results, the defect can not be directly imputed to the latter.
The courts have also held that a defect that arises during the works is not attributable to the architect if the execution of the project was not his responsibility and that a technical control would have identified the problem and correct the deficiencies.
In principle, however, we retain the solidum responsibility of the architect and the contractor. The vice of plan is rarely different from the design flaw.
The consulting engineer may also be jointly and severally convicted with the architect because their interventions are intermingled most of the time: when the first fails in its control mission, it is often linked to the flawed plans elaborated by the second.
It also happens that both are held responsible for breach of the client's advice and intelligence duties.
In both cases, it is conceivable that the contractor will be exempted from any conviction, having relied on the words of the architect and the consulting engineer.
In principle, the architect is bound by an obligation of result, not of a simple obligation of means, and he can not therefore exonerate himself from his contractual responsibility except by proving a "foreign cause". .
Both the architect and the consulting engineer are obliged to take out insurance covering their professional liability in order to guarantee the reimbursement of defects resulting from any professional misconduct.
E. The existence of framed copyright for the architect
According to Luxembourg case law, an architectural work is protected by the law of 18 April 2001 on copyright. Copyright is attached to the plan and the building constructed according to this plan. However, these rights are well framed and do not allow the professional to claim radically that the plans and the final work belong to him exclusively.
The guiding principle is that the plans and the building that emerge are subject to authorization by the architect for reproduction.
Thus, the courts condemn the fact of reusing the plans for the purpose of constructing other individual works, to dispose of these plans in order to copy the planned construction but without having paid the professional, and also to communicate them to a another architect hoping to be able to build the structure at a lower cost. Needless to say, it is illegal to let a third party copy the sketches.
Nevertheless, there is an attenuation to this principle: it is logical to conceive that the owner has the right to benefit personally from the services he has paid. In other words, the client has the right to take advantage of the services requested from the architect. Two conditions must be met: a remuneration must have been paid to the initial architect for the preparatory work done, and the plans must be used to build the work initially planned and not new constructions. Thus, the customer is entitled to ask a second builder to modify the initial plans, without having to seek the agreement of the architect-creator.