The architectural design contract: what it has to say

Most architectural design commissions in Colombia are agreed over WhatsApp and a bank transfer. It works fine until it stops working, and when it stops working there is nothing to refer back to.

This is not a model contract. These are the six clauses where the arguments are really lost, with what the rules say about each one. It serves equally for reviewing the contract you were sent and for asking for the one you were not.

1. Scope: what gets delivered, exactly

The number one cause of conflict is that the two sides believed they had contracted for different things. It is solved by listing deliverables, not adjectives.

The rules carry the most complete list that exists in Colombia for the architectural project, and it works as a template:

• —General drawings of floor plans, sections and elevations.
• —Detail drawings: joinery, metalwork, stairs, bathrooms, façades, tiling, ceilings and floors.
• —Layouts for drainage and lighting, without the calculations or the engineering drawings, which belong to another professional.
• —Detailed specifications of materials and finishes.
• —Coordination of the technical drawings. The rule sets a limit: "the architect’s task in this field is one of coordination only".
• —The application to the competent authority.

And with the same clarity, what is not included: the soil survey, the structural design, the electrical, plumbing and gas designs, the topographic survey, the curaduría charges and the delineation tax levied on building work. The rule says it without hedging: the engineering studies "shall be paid for by the contracting party and their value is not comprised within the architect’s fee".

2. Payment: against deliverables, not against dates

A payment schedule tied to dates is impossible to verify: if the project slips, the calendar carries on regardless. A schedule tied to deliverables verifies itself.

3. Revisions: how many, and who pays for the rest

No Colombian rule sets a number of revisions included. It is a commercial decision, and for that reason it has to be written down: two, three, whatever the figure, but a figure.

What the rules do supply is who pays, and it is the distinction that heads off the dispute:

An error by the architect: the architect corrects it. A change of mind by the client: the client pays for it. The rule even distinguishes three scenarios according to whether the change increases, holds or reduces the construction budget.

4. Who owns the drawings

This is the richest section and the one hardly anybody writes properly. There are four things worth knowing before signing any intellectual property clause.

Drawings are protected works, with no formality

Colombian copyright law expressly protects "works of drawing, painting, architecture… the drawings, sketches and plastic works relating to architecture". There is no need to register them: registration is declaratory, not constitutive. It serves as evidence, not as a requirement.

Moral rights are not assignable, whatever the contract says

The right to be recognised as the author is "perpetual, inalienable and non-waivable", and the law adds that those rights "may not be waived or assigned". A clause purporting otherwise has no effect.

Economic rights can be assigned, on two conditions

Where a work is created to commission, the economic rights are presumed to have transferred to the party who commissioned it, "to the extent necessary for the exercise of its habitual activities". But there are two conditions almost nobody meets:

• —For the presumption to operate, the contract must be in writing. With no written contract there is no presumption of assignment.
• —The transfer must be recorded in writing as a condition of its validity, and if it does not mention a term, it is limited to five years.

And the rule peculiar to architecture

This one surprises both sides when they are shown it, and it sits in a single article:

In architecture, the author’s right to have the work left unaltered gives way to the right of ownership. A building is inhabited, transformed and adapted; it is not a painting. What survives is the signature: the architect can demand their name be taken off.

5. What happens if you cancel

Projects do collapse: the budget changes, the plot is sold, the family changes its plans. Better that this is written down before it happens.

The rule anticipates the case, and with a condition that surprises people:

You cannot pay for the concept design, have somebody else finish it and build from that. It is the clause most often ignored and the one that generates the most conflict. It can be agreed differently (buying the right to have it finished by somebody else is perfectly legitimate), but it has to be agreed.

6. Who signs, and under what number

To practise architecture in Colombia you need a professional registration card, and the law requires that to enter into contracts the registration be produced and its number stated in the contract.

If the contract you were sent does not carry it, ask. The register is public and free, and there is a certificate of professional standing that also attests to the absence of sanctions. With one quirk worth knowing: the search does not work by name, only by identity document or registration number.

The check before signing

1. 1Are the deliverables of each stage listed, and not merely the name of the stage?
2. 2Does it say explicitly what is not included: soil survey, structural, technical designs, curaduría charges, tax?
3. 3Does payment run against deliverables rather than against dates?
4. 4Does it say how many revisions are included and what happens with the ones after that?
5. 5Does it say who owns the drawings, for how long and for which building?
6. 6Does it say what happens if either side cancels?
7. 7Is the signatory’s professional registration number there?
8. 8Are there deadlines with dates, and what happens if they are missed?

A contract that answers these eight fits on three pages and heads off almost everything that goes wrong. Reluctance to sign it, from either side, says rather more than any reference.