Novation
Novation, Handled on Your Terms
Advice on design and construct novation for architects and consultants across Australia, before you sign the deed
On design and construct projects, the moment your appointment moves from the client to the builder is the moment your risk changes. Novation is standard, but the deed that transfers you rarely reads in your favour.
Christopher Larcos advises architects and consultants on novation from both sides of the fence. As a registered architect he has held the appointments that get novated, and as a solicitor he drafts and reviews the deeds that do the transferring. That means advice on what the deed actually changes for you, not just what it says.
The value is almost always at the front end. A short review before you sign confirms your fees are protected, your liability tracks your cover, and your design is not signed away as a by-product of the transfer.
What advice on novation covers
How novation actually works
The mechanics of transferring an appointment, the difference between novation and assignment, and what changes for the consultant once the deed takes effect.
Consultant novation on design and construct
The standard pattern where an architect's appointment moves from the client to the builder, and the points where that transfer commonly disadvantages the consultant.
The terms of the deed
Effective date, fees outstanding at novation, treatment of pre-novation acts, carried-forward scope, and warranties given to the incoming party.
Protecting your position
Keeping your liability aligned to your cover, preserving payment, and making sure copyright and reuse of your design are not eroded by the transfer.
Common questions
What is novation on a design and construct project?
Novation transfers a consultant's appointment from one party to another. On a design and construct project, the client typically engages the architect to develop the design, then novates that appointment to the builder once the construction contract is let. The architect then continues the same engagement, but with the builder as the client. A deed of novation is the instrument that makes the switch, and its terms decide how fairly the transfer treats the consultant.
Should an architect agree to be novated to the builder?
Often yes, because novation is standard on design and construct projects, but not on any terms. Novation changes who instructs you, who pays you, and who can bring a claim against you, so the deed needs to preserve your fees, confirm what you are and are not responsible for after the switch, and avoid picking up liability for the period before the builder was involved. Getting advice before you sign is far easier than unwinding a one-sided deed later.
What should a consultant check in a deed of novation?
The key points are the effective date, whether outstanding fees are protected, how pre-novation acts and omissions are treated, the scope you carry forward, warranties you are asked to give the incoming builder, and any change to your liability position and how it sits against your professional indemnity cover. A short review identifies the terms worth negotiating before the deed is executed.
How does novation affect copyright in my designs?
It depends on the deed and the underlying appointment. Novation can carry across the licence you granted the client, and a poorly drafted deed can broaden it in the builder's favour or leave your position on reuse unclear. Copyright and the licence terms should be checked at the same time as the novation, so control of your design is not given away as a side effect of the transfer.
Keep reading
Lawyer for Architects
Legal advice across the life of an architectural practice, from a solicitor who is also an architect.
ContinueClient Architect Agreements
The agreement that governs your engagement before any novation, and where the novation is usually anticipated.
ContinueCopyright & Moral Rights
Keeping control of your drawings and design, including when an appointment is novated.
ContinueCredentials
- Dual-qualified solicitor and registered architect
- Fellow of the Australian Institute of Architects (FRAIA)
- 40+ years in the construction industry
- Advises architects, consultants, owners and builders