Legal Considerations when Building Green

With the boom in greening our planet in full swing, it is always beneficial to consider the potential potholes that may form. Like any other new industry, courts have yet to set the legal ground rules for the green construction industry. In other words, very little case law has been created that addresses building green legal disputes. Yes, of course there are legal issues, after all, the court system is typically where Americans settle disputes! With that as a backdrop, let's consider some important legal issues that a lawyer should consider when serving a client that is interested in building green.

First, Negotiate and draft contracts that specifically set forth the role that each of the project's stakeholder’s will play in ensuring that the desired Certification is accomplished. Also, specifically set out the allocation of responsibility that each stakeholder will have. The contract must include language setting forth the party responsible for tracking, collecting, assembling and submitting supporting documentation. You never want to be in a position where Certification is denied simply because the documentation was not turned in. Also, architects and engineers have to be careful not to trigger an exclusion in their professional liability policy. In that regard, design professionals must insist on contract language that clearly indicates their signing of credit submittal templates is solely for the purpose of satisfying the Certification requirements and does not constitute any type of warranty or guarantee.

Second, insist on design professionals and consultants that have experience and knowledge of green construction. Having an architect that has designed other green projects and is therefore familiar with sustainable design, green building rating systems, and the corresponding certification process will save headaches in the end.

Third, specify in the contract the specific green materials, systems, and products whose ability to deliver the necessary level of green performance can be verified. Remember, many states and local governments offer financial incentives for green projects that reach certain certification levels. A good contract will avoid a situation in which the project owner sues the architect for delays that were caused by the architect's failure to inform the owner that product delivery delays were a possibility. Or even worse, the completed project fails to meet the desired certification level because the chosen products do not deliver on their promise to "greenify" the environment.

Fourth, become an expert (or at least very knowledgeable) of the existing state and local laws, that either mandate green building standards or offer incentives for compliant projects.

Lastly, be aware of the new construction challenges in building green. Be mindful of extra time, delays and upfront expenses that might arise. stakeholders should consider these potential problems when evaluating proposed schedules and budgets and negotiating the terms of their contracts.