Requests for issuing certificates

These certificates may come in many forms and do not necessarily need to be labelled as a ‘Certificate’. For example, at the request of your client’s financier, you write a letter to the client and the financier confirming that the building work complies with all codes and standards and contains no defects. It is later discovered that the building was poorly constructed, and would cost a substantial amount of money to rectify the defects. The client and the financier stand a good chance of being able to sue you for that amount, based on the letter you had provided. The purpose of these certificates is therefore to transfer some of the risks on the project from the client / financier to the architect. 

It is strongly recommended that architects avoid any situation where you could be asked to supply such a certificate.

When you provide a certificate – in essence a guarantee – it can expose you to professional, contractual and ultimately legal confrontations. This is especially true for agreements that do not include full architectural services – ie work the architectural practice has not been intimately connected with during construction.

It is important to establish in your agreement at the outset of the project that you will only provide services which are appropriate to the role and extent of architectural services agreed to. If you are uncertain of what an agreement written by your client is asking of you, have the document checked by your legal and insurance representatives and remove clauses that will place you outside of your professional responsibility and expertise.

If you inadvertently find yourself in a situation where you are expected to issue a certificate to a financier, it is important you first obtain advice from your legal and insurance representatives on the wording of the certificate and have a clear understanding of what you are committing yourself to before issuing it. If you are taking on certification it is important to confirm that the scope of the certification is limited to what is contained in the client and architect agreement.

National Construction Code certification

Architects are sometimes asked to certify that a design complies with the requirements of the National Construction Code (NCC). This is more than mandatory certification under building legislation, such as certificates of occupancy, which would usually be provided by a building surveyor or certifier. Instead, on larger projects, head contractors, clients and the financiers behind them may ask for additional certification for their own risk management purposes. 

It is an architect’s responsibility to design in accordance with the requirements of the NCC, but it is also important that if you are asked to provide such certification, your certification is not given in a way that exposes you to unnecessary or unforeseen liability.

We recommend that your NCC certification should only be addressed and provided to your client and not to any third party. If you provide a NCC certification to a third party, you face greater risks of legal and professional liability or claims against you. Where you are requested or required to provide NCC certification, we suggest you adopt the following wording in correspondence to your client:

In my professional opinion, the architectural design for this project has been designed in accordance with the relevant requirements of the NCC [insert year] Volume [insert no/s] which was in force at the time the design was undertaken.

If asked to certify the NCC compliance of not only your design, but also the work of subconsultants who you have engaged, it is recommended you certify only the architectural design, and obtain separate certificates from each subconsultant, which you then provide to your client. Alternatively, in the above suggested wording you could replace the words ‘architectural design’ with ‘architectural and [x] design’ (where x is a list of the disciplines in which your subconsultants work). Before providing such certification, you would need to have each subconsultant provide you with a certificate to the same effect, covering that subconsultant’s discipline. 

You should never certify the work of a secondary consultant secondary consultant A consultant whose work is subject to the direction and coordination of the primary consultant. The secondary consultant is in contract with the client. View full glossary (that is, a consultant engaged by another party, such as the client, who is not your subconsultant). To do so would greatly increase your risk and liability and may fall outside your professional indemnity insurance cover, as you would not ordinarily be liable for the work of a secondary consultant in the absence of such certification.

It is important to stay within your expertise as an architect when certifying. Consider that it may be more appropriate for a building surveyor or certifier to certify NCC compliance. For some technical matters, other specialists such as structural engineers or fire engineers may be the appropriate consultant to provide any required certification.

Even more care is required if asked to go further and certify that the constructed works, or particular products incorporated in them, comply with the NCC. Even in a full contract administration role, architects do not have perfect knowledge of the detail of the built works as they are not permanently on site. The head contractor should provide any required certification of the works, as only they have full knowledge of what was actually built.

Tips to reduce risk exposure from the provision of certificates

• Only provide a certificate if you have a contractual obligation to do so;
• Ask yourself – Can I honestly make the statement that I am being asked to make? Do I have all the information and all the expertise I need to have to make that? If the answer is ‘No’, then do not make the statement;
• Only provide certificates addressed to and in favour of your client, and do not provide copies of certificates to third parties;
• Include a disclaimer in your certificate stating that you accept no liability to any third party who may try to rely on the certificate. Get legal advice on appropriate wording;
• Only allow senior staff to provide and sign-off on certificates; and
• Agree the wording of the certificates before you start work. (See suggested wording below).

If your contract requires you to certify, then you should make sure that the form of certification uses prudent and appropriate language. If you cannot promise something with absolute certainty, it is important to appropriately qualify your certification. Using protective / qualifying language makes it less likely that the certificate would be inaccurate, or would be relied on by a third party and in doing so reduces the risk of claims against you. It also makes it less likely that the certificate would be construed as a warranty or guarantee, which could give you liability that your professional indemnity insurance would not cover. Avoid using wording like ‘warrant’, ‘guarantee’, ‘completely free from defects’, ‘in full compliance with all Australian and international laws, codes and standards’ in your certificates. Also note that the risks of claims and the size of those claims may be magnified where you have given a certificate for a project that ultimately turns out to have non-compliant building products.

Suggested words:

• Insert ‘in my professional opinion’, or ‘to the best of my knowledge, information and belief’, at the commencement of your certificates;
• Preface an otherwise absolute statement by reference to limitations on your assessment, such as ‘based on my periodic observations at the site’; and ‘in accordance with my last visit on site.’
• State at most that the building work is ‘substantially’ or ‘generally’ compliant with the design intent as there will always be construction details that are beyond your ability to observe; and
• If you must certify that any work complies with a specific document, make sure it is a document that is known to you, such as your own contract documents, rather than a vague or unknown standard such as ‘the client’s requirements’ or ‘the requirements of the Head Contract’. 

Further resource:

For information on the NSW Design and Building Practitioners (DBP) Act and Regulations, please refer to our dedicated Institute page.