A little forethought and carefully crafted contracts, says Caryn R. Leland, can help minimize losses if a client refuses to pay your fees.
Ben Hoffmann A little forethought and carefully crafted contracts, says Caryn R. Leland, can help minimize losses if a client refuses to pay your fees.

Forget “location, location, location.” For architects, it's “contract, contract, contract,” says Caryn R. Leland, a Manhattan lawyer whose clients include top architects and designers. Sometimes, they come to her with esoteric questions of intellectual property law; other times, they just want to be paid for their work.

Ironically, Leland says, nonpayment can be particularly troublesome with very wealthy clients, “who have the means to litigate aggressively”—a process few architects can afford. “It's not a level playing field,” she notes. To minimize the possibility of litigation, it's important to have a written contract prepared or reviewed by a lawyer. And then, if payment doesn't arrive, check the contract.

No document can ensure payment, but a carefully drafted contract will contain provisions that you can rely on to enforce your rights, says Leland.

There are plenty of reasons clients do not pay. Sometimes, during construction, an owner will pay the contractor first to keep him showing up for work. Other clients are simply bullies. The relationship between architect and client can be like a love affair, with all kinds of expectations. Sometimes, love affairs end badly.

Make sure you're licensed wherever you're practicing; most jurisdictions have laws that say if you are not licensed, you are not entitled to be paid. If the client discovers you are not licensed, the balance of your fee is at risk, and you may be forced to refund money you have already received.

You absolutely need a written contract. If you are using a “form” contract, make sure it's intended for your jurisdiction. Hiring a lawyer each time you take on a job sounds expensive, but it does not have to be. For many of my clients, I have worked out “standard” contracts that need only small changes for each new project.

Some contracts require the client to pay the architect as various milestones are reached. Others call for a percentage of construction costs. Some architects receive a flat fee, and others work on an hourly basis. Whichever method you choose, don't get too far ahead of your client.

If you are not getting paid, it's important to step back and ask why. Does the client have cause? If there's a problem, there is no substitute, initially, for sitting down and talking. But if that doesn't work, your contract should have a clause providing that nonpayment by the owner is reason for you to stop work—and that you won't be liable for any damage or delays caused by the suspension.

In many jurisdictions, the architect is required to make periodic filings with building departments and other government agencies. If you haven't been paid, you may be able to say, “I'm no longer the architect of record, and can no longer sign off on your documents.” That may offer leverage.

Make sure your contract states that you retain copyright in your drawings. That means you can notify the owner that he is not free to continue using these drawings without paying your fees—to do so would be copyright infringement. The contract may also say that the client can no longer use your name in connection with the project.

Many states permit you to file a mechanic's lien, which gives you a temporary security interest in the building (though it does not, in itself, create a right to payment). Filing a notice of lien will almost certainly get the owner's attention. It will likely serve as a catalyst for settlement, though sometimes it exacerbates a situation.

If nothing else works, you can sue for breach of contract. But be sure your contract requires the client to pay your attorney's fees and court costs if you win.

Fred Bernstein studied architecture at Princeton and law at New York University and writes about both subjects.