DIR 02/19 | Marsamxett Balcony Grant Scheme

Reference is made to the Expression of Interest (EOI) issued by the Planning Authority regarding the Marsamxett Balcony Scheme. Said EOI indicates that only those fees of periti who registered with the Authority will be reimbursed as part of the grant scheme, and this only up to €500.00.

The Kamra tal-Periti was not consulted on this EOI, and has the following observations:

  • This call is unprecedented, since it was never a requirement for periti to register directly with the Authority in order to be on some “list”. All periti, by virtue of their warrant, are eligible to submit applications on behalf of their clients, and do not require any form of endorsement or registration by the Authority.
  • The call guarantees that fees due to the periti who register with the Authority will be reimbursed directly by the Authority, up to the afore-mentioned cap. This means that unless periti are registered with the Authority, reimbursement to the applicant cannot be guaranteed; this cannot be accepted, not least because 80% of the funds come from EU sources. It also means that periti who are not on the list are disadvantaged since their clients cannot claim reimbursement of their fees.
  • The Authority has also taken it upon itself to decide what appears to be the appropriate fees for the services required, by establishing a cap on the amount that would be covered by the fund. In most cases, this will barely cover the fees required to undertake a survey of the property.

The Kamra tal-Periti has communicated with the Planning Authority regarding the above, and was informed that the creation of this register was deemed to  be required because a number of potential applicants were not able to engage periti to submit applications on their behalf, either because of lack of finance or because the periti they approached were not in a position to undertake the services required. The Authority also informed that the Kamra that the amount of fees covered by the grant was determined by the PPCD (Planning and Priorities Co-ordination Division). Despite the Kamra’s objections to the EOI, the Authority has not withdrawn said EOI, and the list of periti who registered is now available online.

Periti are reminded of their obligation at law to enter into a written agreement with their clients regarding the amount of fees due, clearly outlining the services to be carried out and the terms of payment (refer to the Kamra‘s Directive on this matter). Periti are also reminded that they are not obliged to receive payment for their services only after the grant is awarded, but at any time during the provision of the services that they deem fit, and that such dates are to be clearly stipulated in the agreement with the client.

 

Perit Simone Vella Lenicker
President

 

DIR 01/19 | Advertising

Paragraph 3 of the Code of Professional Conduct published in 1968 stipulated that “A member must not advertise or offer his professional services to any person or body by means of circulars or otherwise, or make paid announcements in the Press except that: (a) He may apply to prospective employers for a salaried appointment; (b) He may advertise a professional appointment, open or wanted; (c) He may insert in the Press three notices of one change of address.

Paragraph 4 also stipulated that “A member may allow signed illustrations and descriptions of his work to be published in the press, but he shall not give monetary consideration for such insertions.”

The Kamra tal-Periti consistently interpreted the above to constitute a complete ban on any form of paid advertising, while allowing periti to publish their work as long as this is not remunerated.

Through Legal Notice 116 of 2010, Government removed Paragraph 3 from the Code of Professional Conduct. The Council notes that it is a widely accepted practice across Europe for architects and engineers to advertise their services, notwithstanding this is subject to certain conditions.

Article 24(2) of the SIM Directive – 2006/123/EC reads: “Member States shall ensure that commercial communications by the regulated professions comply with professional rules, in conformity with Community law, which relate, in particular, to the independence, dignity and integrity of the profession, as well as to professional secrecy, in a manner consistent with the specific nature of each profession. Professional rules on commercial communications must be non-discriminatory, justified by an overriding reason relating to the public interest and proportionate.

In light of the above, the Deontological Code published in 2016 by the Architects’ Council of Europe (ACE) stipulates that “No provider of architectural services shall either communicate or promote or represent themselves or their professional services in a false or deceptive manner; nor shall they allow others to do so, whether or not acting on their behalf.

During the Annual General Meeting of the Kamra tal-Periti held on the 10th January 2019, the members present approved the following principles, which are being issued to all Warranted Periti as a Directive:

  1. The above-mentioned principles stipulated in the Architects’ Council of Europe Deontological Code are hereby being adopted by the Kamra tal-Periti, and therefore no Warranted Perit or Warranted Partnership of Periti shall either communicate or promote or represent themselves or their professional services in a false or deceptive manner, nor shall they allow others to do so, whether or not acting on their behalf.
  2. The Council of the Kamra tal-Periti shall be setting up a Working Group which will present a set of guidelines on advertising and marketing of professional services to the Council for its approval and dissemination to the profession.
  3. Until the formal publication of guidelines officially approved by the Council, periti are hereby notified that references to fees or fee structures for the provision of services in any form or advertising, publicity material, or marketing of their services or business, is not permitted.

 

The Council of the Kamra tal-Periti, as empowered by the General Meeting of 10 January 2019, will investigate any alleged breaches in line with the afore-mentioned principles, and, eventually, with the published approved guidelines. Any actions by periti which are found to be in breach of the above will be considered as conduct which is discreditable to the profession, as provided for in the Periti Act.

 

DIR 03/18 | Restoration Method Statements

Over the past few months, a number of periti have reported that after having submitted a Restoration Method Statement (RMS) to the Planning Authority, they were requested to submit “a new document, on office letterhead consisting of ONE page ONLY and stating ONLY the following…”. The rest of the request went on to dictate what should be stated in such one-pager.

This is not only unacceptable, but completely unprofessional, apart from undermining the standing of warranted Periti, particularly those specialised in conservation and restoration methodology, to have the content of their reports dictated to them. The RMS is an important tool in ensuring that restoration works are carried out with care and in a professional manner, and there is absolutely no reason for the Planning Authority to make this request, especially when one considers that in most cases the reports are being submitted in accordance with the Terms of Reference issued by the Authority itself (https://www.pa.org.mt/file.aspx?f=23154).

On the other hand, it is to be also noted that the Planning Authority has commented that not all RMS submissions are up to standard, oftentimes containing various mistakes and irrelevant information. It is therefore important that periti ensure that the quality of their submissions is maintained at all times.

The Council of the Kamra tal-Periti has raised its concerns on this matter with the Executive Chairperson of the Planning Authority, who agreed that this practice is unacceptable, while indicating that the Executive Council and the Director of Planning were not aware of this practice. They confirmed they would be issuing instructions to the officers concerned to desist from making further similar requests.

The Council of the Kamra tal-Periti would like to take this opportunity to thank the Executive Chairperson for his immediate action.

The Council has been requested to forward examples of such requests made over the last few months, and periti are therefore invited to forward the relevant application numbers without delay.

Finally, the Council is hereby issuing a Directive to all periti to ignore any further similar requests from the Planning Authority, and to report them immediately to the Council on info@kamratalperiti.org for further action.

 

DIR 02/18 | Drawings, Design Documents and Intellectual Property

All warrant holders are hereby reminded about the scope of, and the implications raised by, the Kamra’s Directive 01/2015 relating to “Drawings, Design Documents and Intellectual Property of a Perit.

In the light of the ever-increasing number of queries received by the Kamra tal-Periti from Periti and Clients alike, seeking to clarify the position as to their rights over the design-related documents created by a Perit, the Kamra tal-Periti recommends that such matters should be specifically dealt with, and agreed upon by the Perit and the Client, in the agreement / letter of engagement that should be entered into, in advance of the provision of the services in question.

In line with the guidance that is offered by Directive 01/2015, Periti should take the opportunity, when entering into the aforesaid agreements / letters of engagement with their Clients, to clarify all matters concerning intellectual property (IP) rights which they enjoy over design-related documents which they create, in accordance with local and European legislation, including the Perit’s right to retain ownership of the intellectual property (copyright), the Client’s rights and limitations in regard to the use of design-related documents, the format in which the design-related documents are presented to the Client, etc.

The Kamra tal-Periti is of the opinion that if the above-mentioned recommended measures of good practice are put in place, this would allow Periti to avoid situations of conflict, or of ambiguity, arising with their Clients on matters concerning the ownership and/or use of design-related documents by the parties involved.

Below is the original text of Directive 01/2015 with some additional clarifications.

 

Drawings, illustrations and/or other design documents are considered to be the Intellectual Property (IP) of the Perit that prepared them, and there exists no obligation to provide these to a third party save for the purposes of statutory requirements, if any, and provision of a printed copy to the Client.

The legal basis for Periti to retain ownership of IP (copyright in this case) is the result of Article 11 of the Maltese Copyright Act (Chapter 415 of the Laws of Malta) which stipulates that, subject to an agreement to the contrary between the author of the work and the third party individual commissioning same (the Client in this case), the first ownership of copyright vests in the author thereof (i.e. the Perit). The works in question and which Periti may be deemed to create and to author at law are “artistic works”, which term is defined by Article 2 of the Copyright Act to include “drawings”, “plans” and “works of architecture in the form of buildings or models”.

While Clients reimburse Periti for professional services rendered as agreed between the parties, the Client is entitled solely to the use of designs, drawings and other design-related documents created by the Perit, and acquires no other rights over them.

 

Although not obliged to do so, Periti may choose to provide a copy of the relevant documents to the Client in locked digital format, but there exists no obligation to provide same in an editable digital format unless this is specifically established in the Agreement between the Perit and the Client. Periti should be aware that providing a work in an editable format would allow the work to be easily adapted, arranged, altered and/or reproduced, all of which actions are intrinsic to, and associated with, the exclusive rights that a copyright owner enjoys according to copyright legislation (Article 7 of the Copyright Act), and, hence, Clients of Periti should not have an expectation to receive the work in editable format unless there was an express agreement between the parties for this.

 

In the event that a Perit does decide (voluntarily and without obligation) to provide a Client or any other relevant third party with a copy of such documents in editable format, then s/he is within his/her rights to demand whatever remuneration they consider appropriate, over and above any other remuneration received in respect of professional services rendered, save where this is precluded by Agreement as outlined in the previous paragraph.

 

In the case of surveys of existing property, however, where the measurements are taken and the relevant drawings of the building or property in its existing state are prepared by the Perit, in this case alone, the Client has the right to request provision of such drawings in editable format from the Perit, given that such survey includes no additional input of creative design work or similar by the Perit, and is merely a record of the existing state of affairs.

 

The Kamra tal-Periti recommends that Periti pre-empt demands for the provision of design information in their letters of engagement / agreements with prospective Clients.

 

 

Prof Alex Torpiano
President

 

DIR 01/18 | Fees

Over the past couple of years, the Council of the Kamra tal-Periti has received an ever increasing number of complaints from members of the public regarding fees charged by periti. In most cases, the situation arises because the periti involved do not inform their clients of the fees that will be charged for the services rendered.

Although the Council of the Kamra tal-Periti does not enter into disputes relating to fees charged by periti, in view of the fact that clients have other means of redress for such issues, the Council would nevertheless like to draw your attention to Regulation 20 of Tariff K of the Code of Organisation and Civil Procedure, which states that:

20(a)  The foregoing provisions of this Tariff shall not prohibit a Perit and his client, from agreeing on a fee, or the basis on which the fee is to be determined which is different from that established by this Tariff, and in any case the agreed fee or basis for determining it, not being a basis prohibited by law, shall apply, subject to the provisions of the following sub-paragraphs:

          Provided that in any case, a Perit shall inform his client of the applicable fee or the basis on which the fee is to be determined before the service is provided.

20(b)  For the purposes of this paragraph, an agreement concerning fess shall be in writing.

 

It is therefore, not only in your interest, but it is also your obligation to ensure that any agreement on fees is made in writing, and that the services covered by such fee are clearly outlined.

Please be guided accordingly.

 

Alex Torpiano
President

 

DIR 01/15 | Drawings, Design Documents and Intellectual Property of a Perit

It has come to the Kamra’s attention that Periti are frequently facing demands by their Client/s to provide a copy of drawings or other design documents in digital editable format.

Drawings, illustrations and/or other design documents are the intellectual property of the Perit that prepared them and there exists no obligation to provide these to a third party save for the purposes of statutory requirements and provision of a printed copy to the Client.

Although the Clients reimburse Periti for their professional services, with respect to designs, drawings and other design-related documents created by the Periti, the Client is entitled solely to their use and acquires no other rights over them.

Although not obliged to do so, Periti may choose to provide a copy of the relevant documents to the Client in locked digital format (such as Pdf) but there exists no obligation to provide same in an editable digital format (such as dwg files) unless this is specifically established in the Agreement between the Perit and the Client, which Agreement must be in accordance with Article 20 of Tariff K.

In the event that a Perit does decide (voluntarily and without obligation) to provide a Client or any other relevant third party with copy of such documents in editable format, then he is within his rights in demanding whatever remuneration he considers appropriate, over and above any other remuneration received in respect of professional services rendered, save where this is precluded by Agreement as outlined in the previous paragraph.

In the case of surveys of existing property however, where the measurements are taken and the relevant drawings of the building or property in its existing state are prepared by the Perit, in this case alone, the Client has the right to request provision of such drawings in editable format from the Perit, given that such survey includes no additional input of creative design work or similar by the Perit and is merely a record of the existing state of affairs.

Christopher Mintoff
President

DIR 04/09 | Procedure for ‘Change of Architect’ and/or withdrawal from a commission

Following the issue of MEPA Circular 03/09 and the subsequent issue of Chamber Directive DIR 03/09 dated 7 August and 10 August respective, representatives of the Chamber of Architects & Civil Engineers have met with the MEPA Chairman to discuss a number of issues associated with cases where a Client wishes to employ a second Perit to replace the one he/she had previously engaged and in cases where a Perit wishes to withdraw from a commission whether or not the Client has engaged a replacement.

Following the discussions held, it has been decided that with immediate effect, MEPA will revert back to the system as existed prior to the issue of its Cricular 03/09, dated 7th August 2009. Furthermore, and in order to improve the system and to avoid any misunderstanding, the following proceudres are to be adopted by all Periti:

  1. Termination by the Client prior to the Issue of a Development Permit
    The responsible Perit is to immediately inform MEPA of his withdrawal from the case and the subsequent relinquishing of all associated responsibilities, by means of a registered letter, with a copy to the Client and preferably also to the Chamber.
  2. Termination by the Client after the Issue of a Development Permit
    The responsible Perit is to immediately inform MEPA of the client’s instructions given to him/her and of his/her subsequent relinquishing of responsibility for any works beyond the indicated date, by means of a registered letter, together with copies of the said letter, preferably by registered mail to the Police Authorities of the locality where the development is taking place, the Local Council of the same locality, the Contractor, if applicable, to the Client and preferably also to the Chamber.
  3. Termination by the Perit originally engaged by the Client
    The Perit is to immediately inform the Client by means of a formal Withdrawal Notice sent by registered mail, declaring his resignation from the commission and relinquishing of associated responsibilities (save for works already carried out). If a permit a permit application is involved, the Perit is also to send a copy of the Withdrawal Notice to MEPA and if the permit has already been issued, further copies of the Withdrawal Notice are to be sent preferably by registered mail to the Police Authorities of the locality where the development is taking place, the Local Council of the same locality, the Contractor, if applicable, the Client and preferably also the Chamber.
  4. Taking over from another Perit
    Regardless of whether the commission of the original Perit engaged was terminated by the Client or by the said Perit himself/herself, the Perit engaged to take over, shall immediately advise the originally engaged Perit formally and in writing of his/her being requested to take over the commission. If a MEPA permit or application is involved, the second Perit shall approach the first Perit and request his endorsement on the appropriate Change of Architect‘ form provided that it is either already endorsed by the Perit that is taking over, or the two hold a meeting and endorse the said form on the same occasion.

The Chamber of Architects and Civil Engineers is currently in consultation with MEPA in order to establish a mechanism through which MEPA, upon receiving the Notice of Withdrawal, will advise the Applicant/Client to terminate the works (if applicable) and appoint another Perit and furnish a ‘Change of Architect‘ form endorsed by both the incoming and the outgoing Perit within an established period of time in default of which the Application will be withdrawn or the Permit suspended.

Moreover, MEPA will be informing the Chamber of any instances where the Applicant/Client informs it that although he/she has requested the original Perit to sign the ‘Change of Architect‘ form the latter has refused, or is unwilling to do so and the Chamber will be referring all relevant cases for appropriate disciplinary action.

All Periti are to note that ‘Change of Architect’ forms should only be endorsed upon receipt of a formal request by another Perit and provided that either the form has been already endorsed by the Perit who is taking over or provided that a meeting is held between the two and endorsed by both on the same occasion. Moreover, all Periti are to inform their CLients of this accordingly. Periti are also to note that any pending issues between themselves and their Client, such as unpaid fees or similar, are not an admissible reason to withhold their handing over of a commission to a colleague and furnishing of the appropriate endorsed form.

Finally, the Chamber wishes to reiterate, as it has already done in previous directives, that it is a serious breach of the Code of Professional Conduct for a Perit to refuse to furnish his endorsement on a ‘Change of Architect’ form when requested to do so by a colleague who has been engaged to take over the works, provided that the said form has already been endorsed by the said colleague or that a meeting is held between the two to endorse the form on the same occasion. Moreover, it is also a serious breach of the Code of Professional Conduct for a Perit to take over a commission originally undertaken by a colleague without first informing the said colleague in a formal and appropriate fashion.

 

DIR 01/09 | Listing of details in the Yellow Pages publication

The Kamra tal-Periti has on various occasions in the past, and in accordance with directives given by the Council, drawn the attention of all practicing Periti to the correct procedure to be adopted for listing their practice in the Yellow Pages Directory and other similar listings.

The Kamra wishes to draw your attention again that any advertising has to strictly abide by the Code of Professional Conduct and thus only contact details (name, address, Warrant number, telephone, mobile and fax numbers, email address and website address) of the respective Perit or partnership are to be carried.

Agreement has been reached with the publishers of the Yellow Pages to expand the range of styles that can be carried in the publication and six types were agreed to. These are referred to by the publishes as normal and bold listings, extra lines and standard in-column text boxes. Samples of these types, using details of the Kamra as a specimen are shown below.

It is to be noted that no extra wording besides those indicated in the specimens shown, except for the Warrant number, will be allowed.

It is earnestly hoped that this arrangement is to the satisfaction of all and that all listing in the next publication of Yellow Pages will be in accordance with the contents of this directive. The Kamra has the assurance of Yellow Pages (Malta) Ltd that they will be abiding by this agreement and for this we thank them.

Do not hesitate to contact the undersigned for any further clarifications.

Perit Simone Vella Lenicker
Honorary Secretary