Construction Law: Owners - Architects - Contractor

November 28, 2017

By: Barry Dorans

A building fails, is it the fault of the contractor who built it or someone else? In some cases, an owner hires a company to build a building with no real plans to go from, such as a free standing garage constructed for a home, but in many settings, the owner first hires an architect to draw a set of plans. Once the plans are completed, the owner may solicit bids from a variety of contractors and eventually selects one to construct the building. If a problem arises with the building, there is often finger pointing between the contractor and the architect.

In Virginia, unless the contracts say otherwise, the contract between the architect and the contract between the contractor are separate. The contractor has no contractual claim against the architect and vice versa.

In general, a contractor warrants that the building will be constructed in a good and workmanlike manner and will be reasonably fit for the intended purpose. The contractor is not presumed to have the engineering skill or knowledge of an architect and thus the fact that the contractor constructs the building does not guarantee that the architectural plans are adequate. However, even if the plans were drawn by an architect, if the contractor knows that the building’s design will fail, the contractor has a duty to advise the owner.

As a result of these principles, an owner who has hired an architect to design the building and a contractor to construct it, is often left the difficult determination of who is at fault for a defect. Did the architect fail to properly design the building? Or was it that the contractor failed to properly follow the plans? A classic case showing this issue involved an owner who wanted a building built including a restaurant on the first floor and living quarters over the restaurant. The owner had an architect prepare plans and give them to the contractor who began the work. Once the building was completed there were serious defects in the structure. The owner claimed that the contractor had failed to construct it properly and the contractor claimed that while he had made some changes in the way the building was constructed, the building’s original design was defective. The court held that it was up to a jury to determine whether the contractor was at fault.

In such a case, it is very helpful to have an expert witness who has the engineering skills to determine whether the plans as designed were defective or whether the contractor failed to follow the plan. Further, it is helpful to have an expert to determine whether the contractor should have been able to tell whether the plans were defective. These conflicting issues are what can cause many construction cases to be fairly complex.