A Peek at Legal Issues

This week Advisory Board Member Rich Cartlidge gives us a quick look into legal issues surrounding green building.  You can learn more about Rich on the B2S Team page.

This week I am very excited for several reasons. The first of which is that Build2Sustain has gathered some serious momentum and is getting ready to roll out some amazing information in the near future. The second reason is that fellow advisory board member Chris Hill and I will be presenting an examination of common reasons green buildings fail to perform as designed and the various risk mitigation strategies that can be employed to deal with this problem (such as the role a green lease can play). I look forward to working with Chris to bring this series of posts to you and hope that you will join the conversation and ask us any questions you may have. Chris and I have two very different ways of looking at the green and sustainable building industry--Chris being more skeptical and me being more optimistic. However, we both agree on one key point: risk management is key to any project’s success. 

Sustainable projects present a plethora of unique issues which must be addressed by an attorney prior to and during construction of the building in order to minimize the potential for future litigation.While design professionals carry insurance, it is paramount to consider whether the insurance carried by the design professional is adequate in light of the sustainable nature of this project. Sustainable design is different from traditional design that many professionals such as engineers and architects engage in and is also in its infancy, therefore, giving rise to a greater probability that there could be problems inherent in the design for which the owner may wish to sue the design professional. Likewise, it is important to evaluate the warranty and guarantee language of the products and materials being utilized in the construction to ensure that green construction procedures and installation techniques do not void the warranty for a product.

Closely related to the warranty and guarantee issue is the potential for intellectual property infringement or the need to protect intellectual property. Sustainable building is still in its infancy and new techniques and methods to achieve LEED credits are being still being developed. The owner, general contractor, and architect must be aware of the potential for intellectual property infringement by utilizing techniques pioneered by others as well as aware of the need to protect innovative strategies or methods that might be developed during the construction of their building. Clients need to be advised of the importance of contractually defining who is responsible for infringements of other’s rights as well as who will own the intellectual property rights to any techniques developed during this project.

Sustainable buildings have both short term performance goals, such as obtaining certification as well as longer term performance goals such as reduced energy use or the use of energy from renewable resources. The performance goals of a sustainable building must be discussed with the client and if necessary contracts must be drafted to ensure these long term performance goals are met by tenants and other parties. It is important that the client realizes that in constructing a green building, obtaining LEED certification is just one small step and that without the proper education and operation guidelines and contracts in place the true energy savings will not be achieved.

The owner must also consider whether traditional insurance will be adequate to compensate them and permit them to rebuild to LEED standards in the case of a loss, or whether they should obtain an insurance policy which specifically addresses the sustainable nature of the building and provides adequate funds to rebuild a LEED building in the event of a loss.

Comments

[Christopher G. Hill]

Skeptical, me? Never! (just because Murphy was an optimist does not make me a skeptic, does it?) check out my comments at Aribra for thoughts on my skepticism.

[Aanan]

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