Some Green Legal Issues To Be Aware Of

LEED, Energy Model, Legal Issues   December 1, 2010

Today's tip is about green legal issues and how they could affect an owners' legal recourse if a building fails to perform as expect.

The key to any legal recourse is what is in the contract. Of course, this is nothing new. In fact, experts say really the only thing that's new about green building litigation is the idea of levels of certification vis-a-vis the LEED rating system. Breach of contract and negligence lawsuits with construction projects are relatively common.

The issue is that most designers and consultants, without a ton of restrictions and qualifications, will not guarantee a LEED certification or a particular level of energy performance. The reason is that designers don’t control the entire process of LEED certification. And for energy, they'll say that the way the building is operated has as much to do with its energy efficiency as the design. Furthermore, several sources familiar with green building litigation practically laughed at the idea that an energy model would be useful in court as evidence of negligence or breach of contract for an underperforming building.

Owners should work with designers to spell out specifically in the contract which party in the design and construction process has responsibility for which tasks - including LEED credits. That way, if something goes wrong with the certification, owners can point to a particular instance of negligence or breach of contract, and have a much better chance in the courtroom.


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