When Undocumented Mistakes Lead to an Undesirable and Costly Redesign [TCFA Classic]

In a small-town office project, when an eager developer starts without a permit, a faulty wall and low ceilings derail the project. Can an architect be liable for these setbacks when the client jumped the gun?

Find out why permits are non-negotiable, how surveys prevent errors, and why agreements are your shield. 

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Chapters

• 0:00 Cold Open
• 0:24 Podcast Introduction
• 1:04 Episode Introduction
• 1:50 Share This Podcast With Your Colleagues
• 2:16 Story Begins
• 8:29 Lessons
• 9:53 Credits And Thanks

Transcript

In the 1967 film Cool Hand Luke, the chain-gang Captain informs his crew that their problems all stem from one simple cause: “Failure to communicate.” The same may be said of the participants in the following three stories. A simple exchange of information, promptly delivered, duly recorded and correctly remembered, might have saved everyone a lot of grief.

In this story, the construction of a small office building starts before a permit has been issued. And stops when an error is discovered in the drawings. The building is redesigned, and construction begins again. But the new design contains more errors. Keep listening to find out what can happen when a project makes a … “False Start”

Arthur Crummage was a successful accountant and a minor developer of some substance, in a small Northern Ontario city. He hired Architect Nathan Quandrie to design a head office for his “future business empire.” The building design, which was discussed at great length, featured windows on all four sides, allowing a flexible internal layout, with daylight pouring into every officeEager to get started, Crummage hired a Construction Manager, and work began, even before a building permit was issued.

A short while later, trouble arrived in the form of a Building Inspector with a Stop Work Order. Site work had already begun, with excavation completed, and footings in place. But, not only had no building permit been issued, no permit could be issued, because one of the glazed walls clearly contravened regulations.

The wall in question was located within a few feet of the lot line, so it needed to be a fire separation wall, built of non-combustible material. In addition, any glazing that might be contemplated on that wall would have to include an expensive, specially-designed fire-shutter system.

To comply with the Building Code, the Architect had subsequently redesigned the building, and construction was now completed.

Then, the legal trouble began.

Crummage, the Owner and Developer, and now Plaintiff, alleged that he would not have proceeded with the design had he known that windows were not permitted in one of the longer walls. But the cost of starting over – relocating the building away from the lot line, and then going through the three-month site planning process all over again – had forced him to accept the windowless wall.

But there was another problem as well – one that became glaringly obvious when the structure was completed: The ceilings were too low.

Office buildings should have ceiling heights of nine feet or more, but in this building, most ceiling heights were only eight feet, and no allowance had been made for duct work beneath the wood joists, so in some areas, the headroom was reduced even more.

These unsatisfactory conditions had reduced the value of the Owner’s investment, and the wall fiasco had cost him precious time. As for starting without a permit, he stated that he had only allowed the work to begin because the Architect had told him that it would be alright.

As if these problems weren’t enough, his final complaint was that his business reputation had been severely damaged.

It all added up to a million dollars, for which the Owner was suing the Architect.

In his plea, the Architect Quandrie denied it all. He had not realized that the property line was so close, because the adjacent lot – a parking lot for a fast-food franchise – was also owned by Crummage. Furthermore, it was the Owner’s decision, not the Architect’s, to proceed with the windowless wall, knowing that he could have relocated the building. Admittedly, some delay would have been involved.

As for the ceiling heights, he said that the Owner, was not inexperienced, and since the floor-to-floor heights were clearly shown on the drawings, he should have been aware of them. 

The ductwork was another matter. As part of the design-build contract, the Architect was not involved in mechanical matters at all. In fact, he had suggested to the owner that he hire a mechanical engineer.

The lack of windows, he claimed, was hardly an issue. Very few offices were affected, and anyway, accountants are “accustomed to working in semi-open cubicles without windows, aren’t they?”

As a final point, the Architect stated that he had not told the owner to start construction without a permit and was unaware that he had done so.

The matter proceeded through discoveries. Based on an analysis of the evidence and testimony produced, Pro-Demnity concluded that the grossly inflated amount of the claim – and the self-serving appraisals produced by the plaintiff to bolster his alleged loss – were insupportable. That said, the Architect was not wholly credible, either. This was a small city, and it was impossible to imagine that he was completely unaware that the construction was underway. 

When interviewed by the Pro-Demnity counsel, the Owner’s Construction Manager Ed Ruff supported most of the Architect’s claims, but his story regarding the permit was somewhat at odds with the Architect’s version: It was on the Architect’s advice, he said, that the construction had started before the permit was issued.

Although the Architect bore clear responsibility for the location error, which resulted in some delay, the other issues were entirely defensible.

The Plaintiff responded with the inevitable posturing but, in the end, Pro-Demnity successfully defended the Architect’s position and settled the matter for a small fraction of the original claim, well within the limits of his professional liability policy.

In a small town, it might seem harmless, and entirely natural, to set aside “big-city” protocols in favour of small-town etiquette. But as we learn from this story, architects have a duty of care that they are obliged to uphold – regardless of locale – urban, suburban or rural. And failure to observe that duty is not just bad practice, it can lead to costly errors.

Lesson No. 1: With the exception of certain permissible start-up activities, building without a permit, is imprudentand illegal.

Lesson No. 2: Be aware of the exact boundaries of your site by making sure you have a valid survey. It is unwise to just take your client’s word for it – even if (or especially if) your client owns the adjacent properties.

Lesson No. 3: When dealing with an experienced client, be careful about letting your guard down. In this case, the client was a seasoned developer, and should have been awarethat errors were beingcommitted. An architect’s duties include protecting clients against themselves.

Lesson No. 4: Be sure to have signed agreements in place before any work begins. In this case, all sorts of oral promises were claimed, but the defence was impeded by the lack of an Architect-Client Agreement. The informal arrangements reflected the relaxed small-town environment, but blurred the roles of the parties, including that of the construction manager.

As suggested at the beginning, you mayvery easily find yourself in circumstances similar to these. Remember these four lessons and take care. False starts can often lead to unfortunate finishes.