Architect law (Germany)

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The architectural law governs the rights and obligations of the architect . It is a cross-sectional matter , that is, the law of architects is not regulated in a uniform code of law, but is composed of numerous legal provisions from different origins. For Germany, the civil code ( BGB ), the fee schedule for architects and engineers ( HOAI ), the architectural laws of the individual federal states and the professional rules of the architects' chambers should be mentioned in particular . In practice, the most frequently interesting topics on architectural law are

Architect contract law

The architect contract law governs the rights and obligations of architect and client.

  • In the architect's contract, which can be concluded orally or in writing, the contracting parties primarily specify which services the architect should provide when and how and how he will be paid for them.
  • There is fundamental freedom of contract . The architect contract is usually a work contract according to §§ 631 ff. BGB.
    • Limits are set by mandatory rules of the BGB and, as far as the fee is concerned, the HOAI (see below).
  • Contrary to popular opinion (especially among architects themselves), the HOAI is not the basis for the content of the architect contract, but the concrete contractual definition or the BGB (note: the service phases according to HOAI with their catalog of services can therefore only be clues as to what the Architect was specifically contracted).
  • The fee law is partly part of the contract law because the agreement of the fee is in principle a matter of negotiation (§ 632 BGB).
    • However, the HOAI draws negotiation limits with maximum and minimum rates for the most important architectural and engineering services. If the remuneration agreement of the contracting parties violates these rates, the rest of the contract remains effective, i.e. the architect must provide the promised service. The ineffective fee agreement is then replaced by the mandatory fee regulation of the HOAI .
    • In 2009 a new HOAI was published, which brought some significant changes compared to the old HOAI (see main article " Fee schedule for architects and engineers ")

Architect's liability law

In architect liability law deals with the question of when, to whom and to what extent the architect for failure of its services (planning errors, errors in supervision) adheres.

  • Every architect is legally obliged to take out professional liability insurance (with certain minimum insurance conditions) and to maintain it permanently.
  • In the event of damage, the claimant will usually be the client; The executing company and / or other engineers, so-called specialist planners (for example the structural engineer ) can also be involved in such a dispute , because structural damage is often due to several causes at the same time. In principle, the builder can claim compensation from every damaging party; the damaging party then has to divide the damage internally according to the causation rate (compare total liability ).
  • Insurance law also plays a major role here. Damage sums for architectural errors are often high. Typically, a dispute then arises between the architect and the insurance company as to whether the damage has to be covered by the insurance company or whether the insurance cover is sufficient.

Architect's copyright

As is generally the case with copyright law , architects' copyright is about whether and to what extent the architect has permanently protected rights to his planning services, with the result that changes to this service would only be possible with his consent. The prerequisite for this is always that the planning was not a purely functional achievement, but rather has a certain amount of intellectual and creative content.

Architectural professional law

The professional law of architects is the "professional law" of architects.

  • The architect is basically a freelancer, similar to a tax advisor , lawyer or doctor . However, architects' limited liability companies and other forms of company are now also permitted.
  • The architectural laws of the federal states regulate the basic rules for admission to the profession of architect and the exercise of this profession. The chambers of architects define these principles in more detail by means of statutes and guidelines, for example on the question of the extent to which architects may advertise.
  • Every approved architect is a compulsory member of the local Chamber of Architects responsible for his place of business . Each Chamber of Architects oversees the architects approved in their district; In this respect, it is also authorized to punish misconduct by the architects that is relevant to professional law (including through its own professional courts ).

literature

  • Palandt , BGB. Commentary , 76th edition, Munich 2017, Verlag CH Beck (as an example for a series of comments on the BGB)
  • Morlock / Meurer, The HOAI in Practice , 7th edition, Munich 2010, Werner-Verlag, ISBN 978-3-8041-4351-7
  • Thode / Wirth / Kuffer, Praxishandbuch Architektenrecht , 2nd edition, Munich 2011, Verlag CH Beck, ISBN 978-3-406-59169-3
  • Werner / Pastor, The building process , 13th edition, Düsseldorf 2010, Werner-Verlag, ISBN 978-3-8041-5024-9
  • Weber / Kesselring / Hennig, The development of property developer law as well as architecture and engineering law in 2009 and 2010 , in: NJW 2010 (Issue 26), 1855 (following the corresponding article in NJW 2009, 3346)

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