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 |  Axel Kötteritzsch

How does the architect get his fee in court?

In building projects, there are always disputes between the client and the architect about the architect's fees. It is not uncommon for a court to have to decide this dispute after a long, time-consuming and cost-intensive procedure. The architect often faces the problem that he has to explain and prove exactly which services or results he has agreed on with the client in return for a corresponding fee and that his services have been accepted by the client. What seems obvious at first glance can often lead to difficulties for the architect in court.

We would therefore like to refer to a recent decision of the Higher Regional Court of Brandenburg dated 5 January 2021 (file reference 12 W 28/20). In this decision, the court sets out the requirements for the successful judicial assertion of architects' fees.

In the aforementioned decision, the plaintiff architect requested legal aid for an intended action for payment of fees for partial services from service phases 5 to 7 HOAI according to his final invoice. In this regard, the plaintiff essentially alleges "discussions with the defendant building owner to take over the construction management". The plaintiff further submits that "both parties discussed that the plaintiff was entrusted with the mass determination, implementation planning, tendering, awarding and construction management".

This submission by the plaintiff architect is (of course) not sufficient for the court to give his action a chance of success and to grant him legal aid. Rather, the court requires the plaintiff to make concrete submissions on an effective legal agreement on the specific services to be provided (performance target). In the court's view, these could also be defined according to the individual service phases of the HOAI. For this to be the case, however, it must be proven that at least one keyword-type agreement oriented towards the terms of the HOAI (for example "implementation planning") had been effectively reached between the two parties. However, the court could not identify such an agreement in the plaintiff's submission. Rather, it was unclear to the court exactly what scope of work the defendant was supposed to have commissioned from the plaintiff.

The court also lacks a necessary acceptance of the plaintiff's architectural services. The plaintiff did not submit an explicit acceptance. But the court could also not infer an implied acceptance from the plaintiff's submission. In the court's view, the plaintiff would have had to state and prove "that the services had been provided in accordance with the contract or had been completed essentially free of defects in accordance with the client's expectations and that the contractor could understand the client's conduct as approval of the services provided as essentially in accordance with the contract". This was lacking.

The reasons why an architect may have difficulties in successfully claiming his fee in court are manifold. For example, the architect's services are not properly specified and documented from the very beginning because their content and/or later changes and additions are only agreed verbally or in the presence of witnesses or are inadvertently not agreed at all. Many architects have also had good experiences with their clients in the past and mistakenly trust that they will be able to reach agreement on all important points with the client again without any problems, even after the contract has been concluded in their favour. Often, statements are made such as "of course we agreed on that", "that's how we've always done it", "that's how it must have been" or "it couldn't have been any other way".

It is therefore advisable to define the content of the contract, including all subsequent amendments and additions, precisely and exhaustively with the help of a qualified lawyer, in order to be able to present and prove it with sufficient certainty in a remuneration suit. Such inaccuracies at the beginning of the project can hardly be corrected in later proceedings. Acceptance of the architect's work must also be properly recorded and documented. Otherwise - as in the above-mentioned case of the Higher Regional Court of Brandenburg - there is not only the risk of losing the architect's fee (which was perhaps thought to be secure), but at the end of a long process also the risk of having to pay the costs incurred in a not inconsiderable amount.

Düsseldorf, 18th of February 2021

Author Axel Kötteritzsch

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