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Construction & Contracting

Architect without site supervision: what risks do you run?

Vianto Pashku - Lawyer · · 9 min
Table of contents

In short

"Just do the plans, I'll handle the execution with the contractor myself." It looks like saving money, but it is a legal minefield. For the client and for the architect. What does the law say, what does recent Cassation case law say, and what pitfalls remain for those who want to go this route anyway?

"Just draw the plans, I'll supervise the site myself." It is a request that regularly surfaces in practice. The client wants to save on fees, or thinks they have enough knowledge to supervise the work themselves, or wants more flexibility. The architect hesitates — strictly speaking this is not allowed just like that — but sometimes agrees under pressure from the relationship or the project.

What this means legally for both parties has crystallised sharply in case law over recent years. The Court of Cassation ruled twice that the mere discharge from the supervision task does not automatically void the contracting agreement — but the trial courts built a parallel comprehensive framework around the duty to inform and its damaging consequences. For the client, the line is thin. For the architect, thinner.

The architect's statutory supervision task

The legal basis is set out in Article 4 of the Act of 20 February 1939 on the protection of the title and profession of architect. For works for which laws, decrees or regulations require a prior application for a building permit, this Act requires the assistance of an architect — both for drawing up the plans and for supervising the execution.

The Regulation of Professional Duties (Royal Decree of 18 April 1985) refines this obligation. Article 21, first paragraph, provides that the architect may not accept the assignment to draw up an execution project without simultaneously being entrusted with the supervision of the execution of the works. The second paragraph provides one exception: this principle may be derogated from where the architect has the assurance that another architect, registered on a roll or on a trainee list, is entrusted with the supervision. In that case, he notifies this to the public authority that issued the building permit, as well as to his Council of the Order, and communicates the name of the architect succeeding him.

In short: the supervision task is legally mandatory. An architect may not simply draw plans without someone actually supervising the site.

What if the client discharges the architect from the supervision task?

Here things become more delicate. Suppose the client discharges the architect from his supervision task — for example because he wants to supervise the works himself, or because he thinks he no longer needs architect supervision. What are the legal consequences?

The Court of Cassation delivered an important ruling on 15 September 2022 (AR C.22.0066.F). The Court held that the mere fact that the client, who requested the assistance of an architect for drawing up an execution project, has entrusted neither this architect nor another with the supervision of the execution of the works, does not in itself entail the nullity of the contracting agreement concerning the execution of these works.

Two weeks later, on 29 September 2022 (AR C.21.0491.F), the Court further clarified the position of the architect himself. There is no obligation on the architect, who has delivered an execution project and is discharged by the client from the supervision task, to ensure that another architect will be entrusted with supervising this execution. There is only an obligation to inform the authority that issued the building permit and his Council of the Order that he has been discharged from this assignment.

At first sight, reassuring for architects. But the trial courts quickly tempered that message.

The pre-contractual duty to inform (Article 5.16 CC)

What the Cassation case law leaves open is filled by Book 5 of the Civil Code. Article 5.16 CC codifies a general pre-contractual duty to inform: the parties provide each other, during the pre-contractual negotiations, with the information which the law, good faith and usages, in light of the parties' capacity, their reasonable expectations and the subject matter of the contract, require them to give.

For architects, who by definition are experts on the statutory requirements of construction projects, this means: they must inform their client of the statutory nature of the supervision task. An architect who agrees to an assignment without supervision, without expressly pointing out to the client the risks involved and the fact that such an arrangement is not the statutory norm, breaches his pre-contractual duty to inform.

Article 5.17 CC sets out the sanction: parties may incur extra-contractual liability towards each other during pre-contractual negotiations. Where negotiations are wrongfully broken off, such liability entails restoring the injured person to the situation in which he would have been if there had been no negotiation. Where legitimate expectation was created that the contract would undoubtedly be concluded, this liability may include compensation for the loss of expected net benefits from the unconcluded contract. Breach of a duty to inform may lead not only to pre-contractual liability but also to the nullity of the contract if the requirements of Article 5.33 CC are met (the doctrine of defects of consent: mistake, fraud).

Mons 17 November 2022 — professional fault in a partial assignment

The Court of Appeal of Mons held on 17 November 2022 (T.Verz. 2023, no. 3, 356) that the architect entrusted with a partial assignment committed a professional fault by failing to verify whether the contractor chosen by the client had access to the profession for carrying out the disputed works, and by giving his consent for the commencement of these works without ensuring that another architect would provide the supervision of the works subject to a planning permit.

The judgment seems in tension with the Cassation case law — Cassation said there is no civil-law obligation of verification. However, the Court of Appeal of Mons draws on the general duty of care and professional fault: the architect who participates in the works without even checking whether the contractor has access to the profession, and without concerning himself with the actual supervision, does not behave as a reasonable and diligent architect would. The difference between "statutory obligation" and "professional diligence" thus becomes the hinge on which liability may nonetheless turn.

Antwerp 6 June 2023 — demolition after concealed duty to inform

The heaviest sanction so far comes from the Court of Appeal of Antwerp, on 6 June 2023 (Limb.Rechtsl. 2023, no. 4, 327). It concerned a construction project that started after the permit was granted, but where that permit was later annulled. The building had to be demolished. The question: who bears the cost of that demolition?

The Court held that the architect had not complied with his pre-contractual information obligations under Articles VI.2 and VI.64 of the Code of Economic Law. The main features of the services provided by the architect are: the specification of the architect's precise tasks in light of the statutory obligation to have recourse to an architect's assistance for the construction of buildings, the relationship between the tasks of the architect and those of the contractor, the requirement of a written architect's agreement, and the content of the agreement whereby the architect may, under strict conditions, be entrusted with a limited assignment.

The failure to provide this information had resulted in there being no clarity whatsoever about the architect's precise tasks. In those circumstances, the Court held, the architect could not reproach the client for not having notified him of the commencement of the works by the contractor.

The architect's non-compliance with his pre-contractual duty to inform constituted a fault within the meaning of Article 1382 of the old Civil Code (today the extra-contractual liability regime). This fault was causally connected to the damage — namely the cost of demolishing the building. The Court reasoned: if the architect had complied with his information obligation and had made clear from the outset the essence of his intervention to the client, the architect's involvement in this risky construction project would have been much greater from the start, whereby the risk of the contractor performing works contrary to the permit would have been much smaller or non-existent. For the impact of permit problems, see what happens to your contracting agreement when building without a valid permit.

Mandatory professional liability insurance and undeclared sites

Since the Act of 31 May 2017, mandatory insurance applies for the ten-year civil liability of architects and contractors in the construction sector. The Act of 9 May 2019 added mandatory insurance for professional civil liability. No one may practise the profession of architect without being insured.

However, practice raises a specific issue: what if the architect does not declare a specific site to his insurer (usually via an annual declaration)? Can the insurer refuse cover when a claim arises?

The Court of Appeal of Mons gave a clear answer on 23 March 2023 (For.ass. 2023, no. 235, 124). The general conditions of the insurance required an annual declaration, but the architect had not made one for the specific site. The Court held that non-declaration constitutes an exception or forfeiture which is not enforceable against the injured party. The annual declarations are not intended to delimit the subject matter of the insurance cover — they only regulate the insured's obligations in the event of a change in risk during the contract. Moreover, the insurer's interpretation would undermine the equivalence between the mutual obligations of the insurer and the policyholder (Article 23 Insurance Act), and would erode the effectiveness of the statutory insurance mechanism.

The Court of Appeal of Brussels reached the same conclusion on 25 January 2024 (JLMB 2024, no. 42, 1903). For the client, this is important protection: even if the architect failed his declaration obligations, the insurer cannot refuse cover against the injured third party.

What to do as client or architect?

For the client. Never accept a contract in which the architect has no supervision task, without express written clarity about who does carry out that supervision. If you nonetheless work with a partial architect's assignment, ask for express mention in the contract of: which acts fall under the architect, which fall outside, which risks you bear yourself, and which permit obligations still need to be monitored during the works. When in doubt: seek advice before the works start.

For the architect. The Cassation case law does not release you from the general professional duty of care, and certainly not from the pre-contractual duty to inform. Written documentation of your warnings, a carefully drafted architect's contract that expressly frames the partial assignment, and proper notification to the authority and the Council of the Order when you are discharged: those are the minimum requirements. Combine that with timely declaration of every site to your professional liability insurer.

Reius Advocaten assists both clients and architects in this area. For clients in contract review, for architects in professional liability files. Contact us at info@reius.be.

Want to know your full position as a client? Read our guide on the rights and duties of the client.

Frequently asked questions

Can I hire an architect who only draws the plans?

Not just like that. Article 21 of the Regulation of Professional Duties prohibits an architect from accepting an execution project without simultaneously being entrusted with supervision. The only exception: he has the certainty that another architect is entrusted with the supervision and he notifies this to the authority and the Council of the Order. If you nonetheless work with an architect without a supervision task, you run the risk of liability problems when something goes wrong — and the architect himself risks disciplinary sanctions.

What is a "partial assignment" for an architect?

An assignment in which the architect does not perform the full role of plans plus supervision plus acceptance. It may involve, for example, only the plans for a building application, with another architect for execution, or an assignment limited to specific phases. A partial assignment is contractually possible but must be expressly described, and for works that legally require an architect's supervision, another architect must be appointed with notification to the authority and the Council of the Order.

What if I notice during the works that the architect is not present?

React in writing. An architect who, despite his supervision task, does not visit or monitor the site, breaches his contractual obligations. Give him formal notice of default by registered letter, request an explanation, and demand a schedule of site visits. In case of continued absence, you may terminate the agreement for non-performance. Document everything: photos of the site, absence reports, defects caused by lack of supervision.

Can a contracting agreement be declared null and void without an architect?

Not automatically. The Court of Cassation (15 September 2022) confirmed that the mere absence of architect supervision does not render the contracting agreement void by operation of law. But nullity may follow via a detour: mistake or fraud under Article 5.33 CC, combined with breach of the pre-contractual duty to inform. The Court of Appeal of Antwerp (6 June 2023) showed that the consequences of such breaches can reach far, including liability for the demolition cost of an unlawful building.

Must the architect warn me if I want to supervise the works myself?

Yes. The pre-contractual duty to inform under Article 5.16 CC requires the architect to inform you of the statutory requirement of architect supervision and of the risks of an assignment without supervision. The Court of Appeal of Antwerp (6 June 2023) confirmed this as an essential obligation for the architect, with liability in case of failure. For the architect this means: warn in writing, and anchor that warning in the contract — otherwise he stands without evidence later on.

Who is liable if there is a defect in the construction without architect supervision?

The contractor remains liable for his own execution errors. The client may be confronted with problems regarding insurance and ten-year liability. And the architect who came on board without safeguarding supervision may be held liable for breaches of his pre-contractual duty to inform and for the resulting damage. In practice we often see parallel liability claims, with the client as common victim — even the one who discharged the architect from supervision. For details on ten-year liability, see how it works for contractor and architect.

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