A lien is a right that entitles a party to hold on to assets in its possession pending payment of a debt owed to it. Specifically for architects (and other professionals), if the architect has prepared plans, it may hold those plans pending payment by its client. In England and Wales it is relatively rare to see a dispute about an architect’s lien reach the courts, but liens can and do arise.
The specifics of an architect’s lien
Under the common law, an architect should be paid in full when it has completed its work satisfactorily. For example, when it has completed its plans. However, the architect must also give its client a reasonable opportunity to check that it has performed its work. After that, it may retain the plans until payment (Hughes v Lenny (1839) 5 M & W 183).
(Remember also that Part II of the Construction Act 1996 and the Scheme for Construction Contracts 1998 will imply specific statutory payment terms into a construction contract that is silent on the point.)
Express terms of the professional appointment
In the usual commercial context, the architect and its client should agree terms of appointment. Typically, this agreement will include:
- An obligation on the architect to prepare plans (in electronic and/or hard copy form), using an appropriate level of skill, care and diligence, and deliver them to the client and other professional consultants/contractor.
- An obligation on the client to pay for the services performed by the architect, including the preparation of those plans.
- An express copyright licence in favour of the client.
The express terms of the contract will govern the parties’ relationship. The architect may not withhold plans, in breach of contract, pending payment. That is, the parties’ contract takes precedence over any common law right to exercise a lien. (Conversely and unusually, if the agreed terms allow for an express contractual lien, then those terms will prevail.)
No lien but right to suspend?
In the right situation, exercising a lien may be a useful right for an architect. For example, if an architect has agreed to prepare sketch plans, in return for a small fixed fee, at an early stage of the project and before the parties have agreed any formal terms of contract.
However, on commercial schemes, governed by express terms of contract, an architect may be better placed to rely on other rights. In particular, if it has not been paid in accordance with the contract, it may be able to exercise its statutory right to suspend for non-payment (including suspending any obligation to deliver up any plans).