Werner Sabo is a partner at the construction law firm of Sabo & Zahn in Chicago. He is also a licensed architect, having practiced architecture for a number of years prior to establishing his law practice in 1981. He is a member various professional organizations, has been an officer and director of the Chicago Chapter AIA, President of the Chicago Chapter, Construction Specifications Institute, and writes a regular construction law column for The Construction Specifier. He is also a founding member of the Society of Illinois Construction Attorneys. He is a Fellow of the AIA as well as the Association of Licensed Architects. His book, Legal Guide to AIA Documents, published by Aspen Publishing, is in its fifth edition. Mr. Sabo is also a construction arbitrator and mediator for the American Arbitration Association and is admitted to the federal trial bar.
James K. Zahn
James K. Zahn is a licensed architect and attorney in the State of Illinois. He is a partner in the law firm of Sabo & Zahn, concentrating in construction law and representing owners, contractors, architects, developers, engineers and other parties in the construction process. He received a Bachelor of Architecture from the University of Illinois and his JD from Chicago-Kent College of Law. Mr. Zahn is a member of the American, Illinois and Chicago bar associations, American Institute of Architects, Association of Licensed Architects and is NCARB certified. He was a past president of the Illinois Council of the American Institute of Architects and is a Fellow of both the American Institute of Architects and the Association of Licensed Architects. He is currently on the Illinois Architecture Licensing Board.
Shawn E. Goodman, Esq., discusses accrual provisions, how they can limit exposure to claims, and how they provide certainty regarding when the statute of limitations begins to run. The American Institute of Architects forms previously included such provisions, but no longer do.
Jim Zahn, FAIA, FALA, Esq., discusses owner-contractor agreements and what essential terms every such agreement should contain. He talks about various types of agreements, from contractor-generated proposals, to large documents prepared by organizations such as the American Institute of Architects, and when it is appropriate to use each type. Many of your questions can be answered by viewing this video.
In a new post on the Construction Specifier, the subject of whether a client can claim a copyright to an architect's work is discussed. A number of courts have addressed this, with the general consensus being that it is the architect, and not the client, who holds the copyright to a work. There are several ways that a client can obtain that copyright, also discussed in the article.
Shawn Go0dman has had his article, The Narrowing Scope of Copyright Protection for Architects, published in the Licensed Architect, at page ten. The article discusses how courts have recently held copyrights by architects to a higher standard than other copyrights, making it much more difficult to bring a copyright case against infringers. This is particularly true when the design is of projects such as homes and franchise businesses.
The Illinois Supreme Court has agreed to review a case, Burke Engineering v. Heritage Bank, 2015 IL App (3d) 140064 (Jan. 27, 2015). In that case, the Third District appellate court upheld a trial court’s determination that the mechanics lien filed by an engineer was invalid because the engineer failed to show any “improvement to the land” and, further, that the engineer failed to prove that the owners of the land “knowingly permitted” the performance of the engineering work as required by the Illinois Mechanics Lien Act (Act). In a two-to-one opinion, the majority ruled that the lien was invalid because there was no improvement to the land, while the dissent maintained that the engineering services fell squarely within the provisions of the statute and the lien was valid.
The engineer had been hired by the contract purchaser of the land prior to obtaining title to the land. The engineer prepared a plat of a proposed subdivision of the property, including plans for sewers and roads. The project never proceeded and no work was ever done pursuant to the engineer’s plans. The appellate court used this fact to argue that the engineer’s work failed to improve the property or enhance the value of the land, thus requiring summary judgment in favor of the bank and against the engineer.
The strong dissent pointed out that the case is contrary to prior Illinois Supreme Court cases, such as Crowen v. Meyer, 341 Ill. 46 (1930) (rejecting an owner’s argument that an architect who prepares plans and specifications for a building that was never constructed was not entitled to a mechanic’s lien on the property); and Freeman v. Rinaker, 185 Ill. 172 (1900) (holding that an architect who drew plans for a building was entitled to lien even though “nothing was done towards the actual construction of the building”). As pointed out by the dissent, another Illinois appellate district, in Butler v. Metz, Train, 62 Ill. App. 3d (3rd Dist., 1978), held in favor of an architect for a lien where the architect designed two buildings but only one was actually built. At least one other unreported decision has ruled similarly.
The issue is now before the Illinois Supreme Court. It will be helpful to clarify to what extent design professionals, such as architects and engineers, can assert a lien when no construction has taken place.
A new article, Three Ways to Limit your Liability, has been published on the Construction Specifier website. This article discusses three contract provisions that can help an architect limit her liability exposure to clients.
We recently posted about the American Board of Architecture and its “alternative path for architect registration and accreditation.” Over the weekend, we received this email from Umber Kazmi, who apparently is a professor at the Sacramento School of Architecture, “A campus of Adroit:”
An accreditation body is permitted to form and accredit schools in the US. You can contact the IS[sic] Department of Education for clarification.
Research the state laws on licensing and accreditation prior to posting such blatantly false information.
We have no doubt that “an accreditation body is permitted to form and accredit schools in the US.” For architecture, however, it is the states that determine the requirements for obtaining a license. The US Department of Education does not do that. A state license is required in every jurisdiction before one can be an architect. Most states require any applicant for licensure to have graduated from a NAAB-accredited program. NAAB is the National Architectural Accrediting Board. Here is a statement by NAAB dated February 4, 2015:
The National Architectural Accrediting Board (NAAB), Inc. has been following recent reports regarding the Adroit School of Architecture in Sacramento, California and the creation of the American Board of Architecture.
First, the three degree programs to be offered by Adroit are not accredited by the NAAB; nor has the institution applied for candidacy for accreditation. Further, Adroit is not accredited by a U.S. regional accrediting agency; a key component of eligibility for NAAB accreditation. The NAAB-accredited degree is accepted as meeting the education requirement for registration in 37 U.S. jurisdictions and for Certification by the National Council of Architectural Registration Boards (NCARB).
Next, the American Board of Architecture is described as an alternative to accreditation and registration in the U.S. The NAAB is the only agency authorized to accredit professional degrees in architecture offered by institutions with regional accreditation from a U.S. agency and only NCARB Member Boards are authorized to license or register individuals to practice architecture in their respective jurisdictions.
On February 6, 2015, NCARB issued a memorandum directed to “Member Board Members,” “Member Board Executives” (the members of NCARB consist of the licensing boards of the various states) and “AIA CACE Executives”:
Please be advised an entity calling itself the “American Board of Architecture” is seeking endorsements necessary to establish itself as an accrediting body of architecture schools. This entity also appears to be developing what it purports will be its own architectural test. The ability to confer a license, including requirements for meeting educational criteria, is solely determined by the state and territorial governments of the United States. The legitimacy of accrediting organizations is determined by state and national departments of education. NCARB, as a confederation of licensing boards from these jurisdictions, provides to their Member Boards the licensing exam and model programs for adoption in determining the path to achieving an architectural license.
In addition, it appears the same individuals involved with the American Board of Architecture are developing a new architectural school in California called the “Adroit School of Architecture.” NCARB favors innovation in the architectural education arena and has been involved in efforts to streamline the process of becoming a licensed architect, while making certain that new architects have the skills and experience necessary to do the job safely. Unfortunately, the Adroit School makes many claims on its website that NCARB believes are misleading, including the claim that the school will license architects and that the school will host a site for administering the Architect Registration Exam (ARE). In addition, the school has used the names and logos of other organizations without their permission in a way that implies these organizations endorse or approve of the school.
The National Architectural Accrediting Board (NAAB) has issued its own statement regarding the Adroit School on its website at www.naab.org. NCARB will continue to make sure that accurate information is being shared regarding this subject. The Council continues to welcome additional collaboration regarding the evolving path to licensure.
Professor Kazmi’s email was sent two days after the NCARB memorandum was issued. She also sent a follow-up email later that same night:
Furthermore students graduating from Adroit School can in fact get a California license pursuant the Practice Act. Shame on you for attacking a new school.
Let’s take a look at the governing law. California regulates the practice of architecture through the Architects Practice Act and the California Code of Regulations, Title 16, Division 2. Article 3 sets forth the requirements for examinations. §116(a) states:
To be eligible for the Architect Registration Examination (ARE), a candidate shall meet one of the following requirements below and enroll in the Intern Development Program by establishing a Council Record with the National Council of Architectural Registration Boards:
(1) Have a degree in architecture accredited by the National Architectural Accrediting Board from a school of architecture as approved by the Board, or
(2) Have at least sixty (60) net months of architectural training and experience under the direct supervision of an architect in private practice or the equivalent as evaluated by the Board, or
(3) Have a combination of educational and experience credit as evaluated by the Board such as to total sixty (60) net months.
So, while Professor Kazmi’s statement that students graduating from Adroit School can get a California license is correct, the same could be said for students graduating from any other non-accredited college. It just would take a lot longer than graduating from a NAAB-accredited program. California will give full credit for college programs only if those programs are accredited by NAAB or its Canadian counterpart, CACB. Otherwise, students can be eligible via various other combinations of the proper work experience and/or college from non-NAAB accredited schools.
It should also be understood that California’s licensing statute and regulations are just that, and apply only to California. In other jurisdictions, licensing may not be possible, even by reciprocity, without an NCARB certificate. Obtaining the proper credentials for other states may be difficult or impossible in the case of graduation from non-NAAB accredited schools, possibly leaving some California architects without the ability to move to or practice in another jurisdiction.
As posted in the original piece, a student who enrolls in a program “accredited” by the American Board of Architecture, or any body other than NAAB, needs to be aware of the facts.