Introduction
Architects are the professionals who take part in construction projects from inception to completion and are responsible for projects such as designing new buildings, restoring old buildings and developing new ways of using existing buildings. It is legally necessary to recognize that members of the architectural profession create a work during their professional activities. Architects fulfill their obligations and are entitled to remuneration when they draw and deliver their projects. It is also seen that there are different views on the legal type of architectural agreements, such as the work agreement and the mixed agreement view, and within the scope of this article, in general terms, the legal nature of architectural agreements will be examined within the scope of different approaches.
Ⅰ. The Subject of Architecture Agreements: Creation of a Product
Architecture is one of the professions included in the Law on Intellectual and Artistic Works ("LIAW") and it is seen in Articles 2 and 4 of this law that the product obtained as a result of architectural activities has the value of a work. Pursuant to paragraph 3 of Article 2 of the Law on Intellectual and Artistic Works, architecture is considered a work of science and literature as
"All kinds of technical and scientific photographic works, all kinds of maps, plans, projects, sketches, pictures, models and the like of geography and topography, all kinds of architectural and urbanism designs and projects, architectural models, industrial, environmental and stage designs and projects".
In paragraph 3 of Article 4 of he relevant law, architectural works are defined as works of art. Pursuant to Article 27 of LIAW, the term of protection of the intellectual property rights of architectural works is accepted as long as the author lives and 70 years after his/her death. As a result of the architectural service, architectural projects and application products created by the architect working under an architectural work agreement are considered as personal rights and are protected.
Accordingly, when a dispute arises within the scope of intellectual property rights, particularly works of art, including architectural works, and the rights of the author, the court in charge of resolving the dispute is the Intellectual and Industrial Rights Civil Courts. As a matter of fact, the Court of Appeals also stated that;
"The court decided to dismiss the petition, to declare the court incompetent, and to send the file to the Intellectual and Industrial Rights Law Court on the grounds that it is necessary to discuss whether the project created by the plaintiff is in accordance with the defendant's request and whether the author has the right on this project, and that this discussion is within the jurisdiction of the Intellectual and Industrial Rights Law Court."
The court stated that the case will be heard at the Intellectual and Industrial Rights Law Court.
ⅠⅠ. Legal Nature of the Architectural Project Planning Agreement
Primarily, it should be noted that an architectural project arrangement agreement is a type of agreement that imposes mutual obligations in return for the architect's commitment to draw and/or deliver the work. Such type of agreement is not explicitly regulated under the provisions of the Turkish Code of Obligations ("TCO"). As a matter of fact, while the first part of the architectural activities involves the architect's making a design and creating a work without being bound to the owner, in the other part of the work, the architect performs effective supervision and control for the realization of this design. In this respect, the design of the project by the architect is the result of the architect's intellectual work, and since it has economic value, it should be considered as a work; therefore, it would be appropriate to classify this agreement as a mixed or even composite agreement consisting of work and employment contracts. The reason is that two legally independent agreements come together for a common purpose while preserving their unique qualities.
As a result of this assessment, the relevant provisions of Article 470 and the following articles of the Turkish Code of Obligations, which apply to the subject matter and principles of the agreement of work, will also find application within the scope of the architectural project arrangement agreement.
a. Establishment Principles of the Architectural Project Planning Agreement
There is no formal requirement for the formation of work agreements. In this context, architectural project design agreements may be made verbally or in written form. On the other hand, it would be beneficial to have a written form of the agreement in order to avoid any loss of rights and in case of proof in case of a dispute and/or legal problem that may arise in the future. The content of the architectural contracts may be determined by the parties within the framework of the principles governing the Turkish law of obligations in accordance with the principle of freedom of agreement as per Article 26 of the TCO, which states that "The parties may freely determine the content of an agreement within the limits stipulated in the law." However, in the event that the agreement is contrary to the principles stipulated in Article 27 of the same law as "contrary to the mandatory provisions of the law, morality, public order, personal rights or the subject matter of which is impossible", the agreement is deemed null and void.
b. Rights and Obligations of the Parties
The rights and obligations of the parties in the architectural agreement are generally regulated in the Code of Obligations, Construction Law, Industrial Property Law, TMMOB Law, Law on Engineering and Architecture, TMMOB Chamber of Architects Regulation on the Practice, Registration and Professional Supervision of Independent Architectural Services, Chamber of Architects Regulation on Rules of Professional Conduct, Architectural Services Specification, Architectural Project Drawing and Presentation Standards and science and technical rules. The aforementioned are for architectural project agreements that are known to be applied within the borders of the Republic of Türkiye, such as residences and workplaces, and there is no restriction in the legislation on the independent artistic practice of architects who can design in an unlimited area.
The architect, while fulfilling his/her obligations under the agreement, is required to observe the rightful interest of the owner and to perform with due diligence. In the agreement of work, in determining the architect's duty of care, the care that should be shown by a different architect performing similar works is expected. Art. 471 of the TCO: "The contractor is obliged to fulfill the obligations undertaken with loyalty and diligence, observing the rightful interests of the owner. In determining the responsibility of the contractor arising from the duty of care, the behavior in accordance with the professional and technical rules that a prudent contractor undertaking works in a similar field should show is taken as basis. The contractor shall be obliged to produce the work directly by himself or to have it produced under his own management. However, if the personal characteristics of the contractor are not important in the creation of the work, he may also have the work done by someone else. Unless there is a custom or agreement to the contrary, the contractor is obliged to provide the tools and equipment to be used for the creation of the work." and the obligations that the architect must meet are specified. In addition, within the scope of the work agreement, the architect is obliged to the owner to start the work on time and to finish the work on time. It is required to create the work on time and at the same time to deliver the work on time, in accordance with ethical rules and morality.
The main dispute in these agreements arises in case the product is defective. In order for the architect to be held liable for a defective work, the delivery of the work and/or the delivered work must be defective. If the delivered work has a different quality than the features promised by the architect, it is accepted as a defective work. In cases where there is such a problem in the agreement, certain rights are granted to the owner within the framework of Article 474 of the TCO. The current article reads as follows: "The owner is obliged to inspect the work as soon as he has the opportunity in the ordinary course of business after the delivery of the work, and if there are defects, to notify the contractor within a reasonable period of time" and the lawmaker has given the right to the owner to indicate the defective product. In these cases, the right to rescind the agreement in the delivery of defective products to the extent that the owner cannot be forced to accept, the right to accept the delivery of the work and request a discount, or the right to request the repair of the work under the condition that the costs of the defective product belong to the contractor. If the owner realizes that the work is defective after accepting the work, he/she must immediately notify the architect of the work, if the notification does not take place, the acceptance of the work is taken as basis.
The obligation of the owner to pay the price of the work is the most important obligation that the owner must fulfill in architectural project planning agreements that are contracts of work. Pursuant to Article 479 of the TCO, the work owner's obligation to pay the price becomes due at the time of delivery of the work. The price to be paid by the owner is determined according to the nature and value of the work and the costs incurred by the architect.
Conclusion
In the architectural agreements made by the members of the architectural profession in order to perform the architectural activity; while undertaking to produce a work, the employer undertakes a payment in return. This agreement is a full bilateral agreement and does not depend on the form requirement. It is also seen that there are different views on the legal nature of architectural agreements, such as the work agreement and mixed agreement views regulated under the Turkish Code of Obligations. However, architectural works are protected as works within the scope of the Law on Intellectual and Artistic Works, and the intellectual rights of the members of the architectural profession regarding the work produced are also legally secured.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.