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Legalese: Termination

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If the love affair with your client ends, you should know how to avoid a messy break up, writes Mark Klimt

Summer is traditionally the time for travelling, broadening your mind with new experiences, and arriving at the realisation that there is more than one way to lead your life. It can therefore often be the trigger to implementing necessary change. Architects are not immune from these influences, and even with work in short supply, there sometimes comes a point when they incontrovertibly want ‘out’ of a problem commission.

Domestic jobs are particularly prone to this. At the start, a project is bathed in the warm glow of optimism and enterprise, but can degenerate into a battlefield and test of endurance, injurious to the health of both client and architect.

I am frequently contacted by architects who feel that they have put everything into a project, regardless of profitability or hours worked; that they have acceded to every (often contradictory) wish of their client, only to face relentless and mounting criticism that nothing is good enough. The commitment that they have shown to the project is then reflected in their immutable commitment to have nothing more to do with it. So how should you proceed in such a situation? 

The starting point, as in so many cases, is the contract. If there are termination provisions, then you will need to make sure that you have observed the correct procedures which it sets out for the notice period, identification of grounds for termination and relinquishment of materials. If you do not follow the termination procedure, this will constitute breach of contract, and you will be responsible for the consequences – which may include the increased cost of the client having to engage an alternative consultant.

Termination is often the last thing that architects want to bring up with a new client at the beginning of a project, as it tends to dampen the enthusiasm needed to get a project off the ground. The trick, therefore, is to have mutual and reasonable termination provisions, stating in what circumstances the contract may be ended. It should also refer to any clauses which would survive after termination; typically, an obligation to maintain insurance or keep material confidential.

You will have to accept that terminating a contract does increase the potential for liability. The temperature on an acrimonious project will not be cooled if the client is obliged to find a new architect. Once appointed, any new architect will be interpreting – and possibly misinterpreting – the work of their predecessor, and will have a platform to be as critical as they like, since they are not responsible for the work done to date.

In addition, the valid termination of a contract will not discharge the parties from their liabilities up to the date of termination. Unless there is provision to the contrary, each party will be responsible for its actions while the contract was in existence, and will be left with the causes of action which had accrued at the date of termination; it does not mean, as some architects expect when bringing the curtain down, that all bets are off.

Aside from legal consequences, you should be aware of the possibility that your erstwhile client will consider that the project has been abandoned irresponsibly, and will raise a professional conduct complaint. It would be an unusual client indeed who recognises that they are the author of their own misfortune.

Even if you are ultimately vindicated, you may find that the distressing experience of the project is more than replicated when you have to defend yourself before your professional peers. In these circumstances, the timing of the termination may be significant – you will be in a stronger position if you have ended your association with the project at the end of a convenient Work Stage, and can be seen to have given responsible assistance to facilitate a handover.

None of this is to say that you should stay with a project or client when the relationship has broken down. Sometimes, for whatever reason, a project cannot be completed without a change, and to persist is likely only to make the eventual falling out worse. It should be possible to negotiate a clearly worded termination clause while everyone is still in the honeymoon period and suffused with goodwill.

This should set out the circumstances under which either party may terminate, and, for the benefit of both parties, list the duties they must continue to undertake and the obligations they are released from. If a proper termination clause is in place from the outset and your decision to quit is properly timed, rather than spontaneous and rash, you will have taken sensible steps to protect yourself from beginning to end.

Mark Klimt is a partner at Fishburns. He is legal adviser to the RIBA and operates the RIBA Legal Helpline

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