BRegs Blog admin 21st November 2014
To mark the first 12 months of the BRegs Blog we are publishing a series of 7 information papers that were issued by past presidents of the representative body for architects (RIAI) towards the end of 2013. These papers contain informed analysis and are still very relevant to the current situation, nearly 9 months post implementation of SI.9. Paper No 2 to follow:
RIAI Past Presidents Paper #2 | The Building Regulations and Certifiers’ Liability
Building Control (Amendment) Regulations, 2013
– and –
The Royal Institute of the Architects of Ireland
Information Paper No. 2
The Building Regulations and Certifiers’ Liability
The amended building control regulations come into force on 1 March 2014. They set out to deliver Consumer Protection by having the architect certify that the design and the building are fully compliant; and by having the architect’s professional indemnity insurance underwrite these certificates. However, the liability which the architect or other person acting as Certifier assumes is so extensive that in a short time, professional indemnity insurance to cover such certification will be unaffordable, unobtainable or both. As a result, the Consumer will have no protection against bad buildings.
The regulations will fail in the Government’s stated goal of strengthened consumer protection, and the architect will be bankrupted along the way.
1 The Government’s intention for the amended building regulations
The press release accompanying enactment of the regulations last April said:-
“The new Building Control Regulations are a major step forward and will for the first time give home-owners clarity, traceability and accountability at all stages of the building process. They will provide consumers with the protection they need and deserve.
“Assigned Certifiers, who can be registered architects, engineers or building surveyors, will inspect building works at key stages during construction.”
“The mandatory certificates will be clear, unambiguous statements on statutory forms stating that each of the key parties to a project certifies that the works comply with the building regulations and that they accept legal responsibility for their work” stated the Minister, adding that this new statutory certification is a key consumer protection measure. “If anyone signs a statutory certificate for a building which subsequently proves to be non-compliant, they can be held legally liable for the consequences.”
2 How the regulations try to deliver better buildings and protect the Consumer
The corner stones of the regulations are the “Design Certifier” and “Assigned Certifier”. The client has a legal duty to appoint these two people. Based on past experience, it is to be expected the client will appoint the architect as Design Certifier and Assigned Certifier on 95% of projects.
The “Design Certifier” certifies the entire design complies totally with the building regulations. The “Assigned Certifier” certifies that the entire completed building or works complies totally with the building regulations.
(By contrast, the Contractor certifies that he has built the building in accordance with “the design”. He is not even asked to confirm that he has fulfilled his legal duty to build in accordance with the building regulations.)
3 What the Design Certifier and the Assigned Certifier have to sign
While the amended regulations contain a lot of paper, there is no mystery about what the certifier is to certify. The relevant texts read as follows:-
FORM OF CERTIFICATE OF COMPLIANCE (DESIGN)
5. I certify that, having regard to the plans, calculations, specifications, ancillary certificates and particulars referred to at 4 above, the proposed design for the works or building is in compliance with the requirements of the Second Schedule to the Building Regulations insofar as they apply to the building works concerned.
Signature …………………………….Date: …………………………….
CERTIFICATE OF COMPLIANCE ON COMPLETION
6. I now certify that the inspection plan drawn up in accordance with the Code of Practice for Inspecting and Certifying Building Works, or equivalent, has been fulfilled by the undersigned and other individuals nominated therein having exercised reasonable skill, care and diligence and that the building or works is in compliance with the requirements of the Second Schedule of the Building Regulations insofar as they apply to the building works concerned.
7. Drawings, specifications, calculations, ancillary certificates and particulars as required for the puposes of Part IIIC of the Building Control Regulations are included in the Annex (see attached).
Signature: ……………….Date: ……………….Registration No.: ……..
(where the signatory is an employee) On behalf of
4 Three legal Opinions on the amended building regulations
While arriving at their conclusions by different routes, the three Senior Counsel who have considered the question of the liability of the Assigned Certifier agree: the liability is total. The architect, engineer or building surveyor who signs the Design Certificate and the Completion Certificate takes responsibility for total compliance of the design work and the construction work done by everybody, whether or not they have seen the work done, or even whether or not they are competent to understand and certify same.
4.1 18 July 2013 Opinion of Mr. Denis McDonald SC
RIAI Past Presidents Michael Collins and Eoin O Cofaigh commissioned a Legal opinion on the Liability of the Assigned Certifier under the amended building regulations. The Opinion has been circulated and is available upon request. Having studied the legislation, Mr. McDonald advises:-
“The certificate to be given by the assigned Certifier … seems to me to involve an effective transfer of responsibility from the builder to the Assigned Certifier. This is particularly important in cases where the building contractor (as so often happens) has insufficient resources of its own to meet a claim by a disappointed claimant who has relied upon such a certificate. Given the terms of the Certificate, disappointed claimants will inevitably turn their guns in the direction of an insured party such as the architect.”
“For the reasons discussed above, it seems to me that the 2013 Regulations impose significant additional responsibilities on architects … including a responsibility to certify the work of others. It is inevitable in my opinion that the certificates to be given by architects will lead to increased claims against architects. I do not understand the rationale for requiring architects to give unqualified certificates not only in relation to their own work but also in relation to the work of others. Again, it seems to me to be inevitable that this will significantly increase the exposure of the Certifier to claims by disgruntled building owners even where the complaints relate to defects in the works carried out by the building contractor, or relate to defects in the design by a specialist (in which the Certifier has had no role).”
4.2 4 September 2013 Opinion of Mr. David Nolan SC
The Association of Consulting Engineers of Ireland sought an Opinion on a slightly wider set of questions. In response to the question: “Will the Assigned Certifier be required to take responsibility for elements of works which are the subject of ancillary Certificates, which by definition, will not have been inspected by himself?”
Mr. Nolan’s Opinion is as follows:
“In my Opinion, as the completion certificate is currently drafted, the Assigned Certifier is not entitled to rely upon ancillary certificates. He is certifying, that the building or works are in compliance with the Second Schedule to the Building Regulations. He is also certifying that the Inspection Plan has been fulfilled. This gives rise to much more onerous obligations than any non Statutory form of Opinion which makes reference to “Substantial Compliance” with Building Regulations. The words “Substantial Compliance” do not appear in the Certificate. The Assigned Certifier is certifying that the building is in full compliance with the requirements even in circumstances where there might be some potential breaches of Building Regulations which might not be capable of being ascertained without specialist knowledge.”
4.3 Liability of salaried employees for their own Certificates
Mr. Nolan goes on to refer to the line on the Certificate of Completion: “(Where the signatory is an employee) on behalf of …”
As regards the comfort which this line might give to an employee, Mr. Nolan says:-
“It may well have been the intention of the drafters of the Certificate, to give some form of protection to the named assigned certifier, but the manner in which the Certificate has been drafted does not give such protection. It simply gives those who may seek legal recourse the option of suing the Assigned Certifier, or his employer, or, more likely, both.”
4.4 4 September 2013 Opinion of Mr. Gavin Ralston SC
The RIAI commissioned an Opinion on many matters from Mr. Gavin Ralston SC. In the course of his Opinion, Mr. Ralston advises:-
“ … applying the above to the 2013 Regulations, in my view, there is a strong possibility that upon a purchaser of a property, receiving a copy of the certificate of compliance, a Court will consider that he has received an assurance that everything is in perfect order. … If the Certificate is regarded as a warranty, as far as purchasers are concerned, they create an almost impossible standard for architects to submit to. Indeed it would be very questionable as to whether valid liability cover could be obtained for such a far reaching certificate.”
And he refers to “the intolerable risk attaching to issuing a certificate of compliance.”
5 Other Liability Risks
While the focus of attention to date has been on the Design Certificates and Completion Certificates, there has been no similar analysis by Senior Counsel of the overall effect of the remainder of the Regulations by either the RIAI or anyone else. There is concern that other clauses which have gone unchecked to date may contain pitfalls and or complications that have not been considered.
6 Architects are not insurance companies
Arising from the numerous defective buildings that have occurred in the recent past, the insurance industry has warned that interest by the insurance industry in providing Professional Indemnity cover for construction professionals is waning and that there is likely to be a significant rise in the cost of such insurance in the coming period, aside from the effects of the new Building Regulations.
The extent of liability, and volume of claims which legal opinion has identified will be made against professionals acting as “Assigned Certifier” under the regulations is likely to make professional indemnity insurance unavailable or unaffordable. Professionals will be uninsured and uninsurable, and salaried architects will be vulnerable to direct litigation. The result: no insurance at all: affords no protection to the consumer.
7 RIAI policy in the light of the above, and the need for an EGM
The Institute has downplayed members’ concerns about the extent of liability they will be obliged to shoulder in the event that their clients ask them to act as assigned certifier – as is the Government’s intention. This issue, central for practising architects, should be at the forefront of Institute concerns. However, it took the RIAI six months to obtain an opinion to confirm what many in the profession had been saying long beforehand.
For this and other reasons, almost 300 Registered Members of the Institute have signed the Requisition papers for an EGM to debate this matter and change RIAI policy.
Eoin O Cofaigh;
Sean O Laoire:
– Dublin, 16 September 2013
BRegs Blog Footnote: The breg forum was set up due to industry concerns concerning BC(A)R in 2013. The forum was a non-representative industry group comprised of professionals intended to debate and analyse the unintended consequences of the proposed building regulations. The BReg Blog grew out of this interest group.
Other posts in this series:
RIAI Past Presidents Paper #1 | The Building Regulations and Consumer protection
BREGS Blog Archive 6 | APRIL 2014
BREGS Blog Archive 5- MARCH 2014
BRegs Blog Archive 4 – FEBRUARY 2014
BREGS Blog Archive 3- JANUARY 2014
BREGS Blog Archive 2- DECEMBER 2013
BREGS Blog Archive 1- NOVEMBER 2013