Multiple and growing responsibility

“Contractors must perfectly execute the undertakings  to which they have subscribed, such that they must ensure all vices, even small, their incidence or the moment they are discovered, thus ‘whether they represent an inadequacy or a non-conformity, as minor as they may be, of the completed work or during performance of the specifications, plans, and so on,’ except to demonstrate that the proper execution of the undertakings was made impossible by force majeur. The same may be said of architects,” the authors write at the beginning of the first chapter in the third part, which is devoted to the architect’s responsibility. This last point in no way limits the ten-year guarantee but also applies, in the context of contractual responsibility, to their responsibility when the work is accepted. As regards extra-contractual responsibility, it may also be invoked based on Articles 1382, 1383 et seq. of the Belgian civil code. In other words, architects place their work in the public sphere and if harm results from their personal actions following an error, they will be held responsible.

A strong trend over the last few years that is not likely to weaken is an ever-increasing responsibility that rests on architects’ shoulders. As with many trades, architecture has not escaped this judicialisation that has been developing over the years in our society. “This trend has a double effect,” Lauren-Olivier Henrotte emphasises. “On the one hand, we see an increase in finding architects responsible; on the other, architects will seek solutions to curb excessive responsibility by using contractual clauses to protect themselves. Even if we also notice, in the area, there remain some architects who are not yet aware of this evolution and are still Bohemians and artists.” Also addressed in this third part are issues related to the criminal responsibility of architects when, for example, they carry out work for which a permit is required without first obtaining it or without respecting it, as well as issues related to neighbourhood disturbances.

Urban and spatial planning

The fourth part, called “Les autorisations administratives et l’architecte” focuses on rules on the law of urban and spatial planning with which the architect must comply, regulations that continue to evolve every year concurrent with this growing complexity in the practise of the profession. “By virtue of Article 17 of the regulation on conduct established by the national Council of the Belgian Architects’ Association, the architect ‘shall ensure compliance with all legal and regulatory provisions that apply to the mission in which he has been entrusted’,” the authors note. “Architects must thus be sure that it is possible to build on the land, become familiar with all the planning and regulatory constraints, direct their clients requests depending on the urban constraints, ensure compliance with all constraints imposed by administrative authorities, and so on. The architects’ responsibility may be triggered because of various failures in connection with the planning rules. Their task is not facilitated by many amendments to the decrees or regulations that regularly appear in different bodies of regional rules.”

By contrast with what might nevertheless be supposed, most litigations that relate to architects do not relate to possible problems of stability of issues connected to town planning permits (old subdivision permits) or building permits but more prosaic problems like moisture. “The main cause of claims relate, in fact, to leakage,”  Laurent-Olivier Henrotte confirms. “This is why some architects favour traditional and tested creations rather than original creations whose technical elements are more complex and ‘risky’. Now, it is not always possible because they must of course take account of their clients’ desires. It is thus up to the architects to explain the technical difficulties and to play the role of advisor.”