Green Buildings and Murphy's Law
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Growing up with my engineer father introduced me at an early age to Murphy’s Law: “Anything that can go wrong, will go wrong.” Although initially confined to the challenges of raising a large family and home repairs to an older home, my experience as a lawyer has confirmed the validity of the law. Green building is no exception, and as the world wide push to more and more sustainable lifestyles and buildings propels the growth of green building, many new things can and most assuredly will go wrong.
Indeed, the emerging nature of green design and construction will likely increase the liability of design and construction professionals for two major reasons. First, green building lacks universally accepted standards for exactly what qualifies as green or sustainable construction. Second, there is the risk of heightened (and unrealistic) expectations on the part of the end users, to whom green building might mean “defect free” or less maintenance.
For now, the best way to prepare for what to do when things inevitably go wrong is to understand the basic concepts in green building systems to better anticipate issues that may arise in drafting agreements and conducting construction and design activities. We recently presented an article that looks at the background of green building systems and examines ways to deal with new risks in both public and private construction.
In anticipation of both legislative and industry wide demand for green building, the American Institute of Architects modified its B101-2007 Standard Form of Agreement Between Owner and Architect to provide some guidance on green building:
§ 3.2.3 The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Project, including the feasibility of incorporating environmentally responsible design approaches. The Architect shall reach an understanding with the Owner regarding the requirements of the Project.
However, this provision contains very little responsibility and anticipates that any “extensive environmentally responsible design” or “LEED Certification” services will only be provided as Additional and not Basic services (meaning more money). So, if such services are needed, care should be taken to draft contract clauses requiring the services and specifying whether the services will be paid for as a part of, or in addition to, the original compensation to the Architect.
