Who is liable for green building performance?

As standards become more stringent, experts urge care on guarantees

NORTH BAY – Green building performance, or rather failure to perform, has long topped the list of legal risks related to sustainability-minded construction, but developers face even greater stakes this year as government-mandated LEED standards loom and achieving certification becomes more difficult.

[caption id="attachment_16409" align="alignleft" width="108" caption="Hallie Fraser"][/caption]

“Whether it’s the engineer, architect contractor, builder, the biggest issue in green building is writing careful construction contracts that do not guarantee a certain level of performance," said North Coast Builders Exchange Green Building Coordinator Hallie Fraser.

"If it is guaranteed, the building doesn’t achieve that level, the owner can charge a breach of contract and all can be liable, on up the tree.”

Though just a handful of green building cases have actually gone to trial, North Bay industry experts say disputes are most often tied to falling short of promised financial savings or tax incentives. Shaw Development v. Southern Builders is the most noted case, where the party sued for the loss of about $635,000 in tax credits, though the matter was eventually settled out of court.


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