Many developers have often engaged an interior designer when the project shell is almost complete. But what they never realize is that the engagement of an interior designer at the very onset of the project is critical for success, writes Cathy MPUTHIA
The interior design industry is picking up in Kenya due to the fact that there is an increased demand and increased appreciation of the benefits of interior design in a building. Just as with every building project; whether it is a house, hotel or an office, the client approaches his architect to come up with drawings and a design of the building structure.
Once the client is happy with the structure, then the architect engages his quantity surveyor to do a cost estimation of the entire project. Upon its finalization, the contractor is engaged and the work begins.
Right from the start
When an interior designer is engaged, he or she should be engaged right from the start of the project and should work together with the architect to achieve the client’s overall desired outcome. However, this is rarely the practise. Most clients engage the interior designer once the building is completed. Howsoever one is engaged, the need for a contract cannot be underestimated.
The other professionals enter into agreements with the client and with each other regarding the works at hand. As an interior designer engaged by a client to carry out some works on behalf of that specific client, it is very important to ensure that an agreement is executed not only between you and the client but also between you and the other professionals whose work output would affect your performance. You would not want to bear the liability for someone else’s fault.
The agreement between the client and yourself must contain the scope of works. It should be clearly set out what the client desires to achieve from hiring you. Where possible, drawings should be included as part of the scope. Where there are other professionals engaged and their output affects your performance, then it must be clearly set out in the agreement that you shall not be held liable if the other professional fails to perform his work satisfactorily or on time.
The contract must contain a time frame. This is to cushion you owing to the likelihood that it may be affected by a third party’s performance. Therefore it is note worthy to include a liability exemption clause for any delays from third parties.
The subject matter of the contract and the contract worth must be stated clearly in the contract. The subject matter is the work at hand while the consideration is the amount that you as an interior designer shall charge for your work.
A force majeure clause should be included which is a clause that exempts the interioz designer from liability in specific cases. Some of them being strikes, trade disputes, lock outs and any acts of third parties like architects and contractors.
This having being said, then what happens if the works contracted for are not performed satisfactorily? Very important is the penalty clauses.
Options for client
The client has various options. One is that he may rescind the contract. That means he will simply terminate the contract if performance is found wanting. The client may get orders for specific performance of the contract. This means that where the works have been partly finished but not yet completed, the client may get an order forcing you to complete the rest of the work.
The client may claim damages whether general or specific. A specific damage is something that can be quantified and can be proven. A general damage happens where the court is of the view that some award should be made to the client for damages suffered.
For example, if during your work, the client or his servant is injured, or if you damage the client’s property as you conduct your work, it would attracts general damages.
Breach of contract
On the flipside, the interior designer can also make claims against the client where there has been a breach of contract. The breach here relates to non payment for services rendered and failure to perform. The interior designer can terminate the contract where the client fails to perform his obligations.
The interior designer can also seek orders for specific performance of the contract, which means having the client compelled by court to perform his obligation under the contract. The interior designer may also sue for specific damages or general damages where he has not been paid for services rendered.
The potential for litigation where a contract is drawn is very high. This is why it is important to include an arbitration clause in the contract. The arbitration clause pre-empts court action as any disputes should be referred to an arbitrator appointed by the parties.
Howsoever you have been hired, it is important to ensure that the agreement is done in writing. Gentlemen’s agreements based on good faith and MOUs are not enforceable in Kenya.
Cathy is an Advocate of the High Court of Kenya practising with Muthoga Gaturu