Green designs open up legal uncertainties

Occasionally, a building owner discovers a defect that occurred during the construction of a project. In those cases, experts conduct inspections, and there is usually a great deal of dispute regarding what caused the defect. Sometimes the architect and other design professionals are brought into a dispute because of the services they provided. When the project in question is an environmentally friendly “green” building, there are additional issues that may arise.

In Missouri, years of litigation and interpretation of statutes have led to the current definition of the standard of care required by architects. The standard requires the professional to perform services consistent with the professional skill and ordinary care provided by architects practicing in the same or similar locality under the same or similar circumstances.

As the building industry begins to focus more on Leadership in Energy and Environmental Design certification, new standards have emerged that arguably heighten the standard of care required by the architect.

Owners are increasingly requesting projects that are going to be LEED certified, and architects have embraced the shift in focus. In May, the American Institute of Architects’ national convention had the theme of “Going Green.” Many seminars focused on the use of new and old materials and how a building acquires enough points to be LEED certified at the levels of silver, gold or platinum.

The architecture profession’s rush to embrace the LEED program has altered the expectations of the building owner. Owners are intrigued with the idea of being conscientious consumers, however, they remain primarily concerned with three things: what it will look like; when it will be finished; and how much it will cost.

Green buildings typically cost more to build. The owner is often persuaded, however, that the lower annual energy and maintenance costs will offset the initial construction expense. An architect’s projections of future performance could be construed as a warranty or guarantee for the building if the owner relied on those representations.

Other potential disputes arise when the architect promises LEED certification. This is primarily due to the qualifying LEED inspections not occurring until after the construction is completed. Furthermore, there is fixed credit for incorporation of certain design features which gives a more quantifiable approach to green design. If a project is completed, and it falls short of the required credits for LEED certification, it is clear that a potential dispute between the owner and architect can arise.

Those types of disputes can be avoided if expectations are set forth early in the project and responsibility for LEED certification is clearly defined within the construction contracts. If these issues are not clearly defined, the ambiguity could potentially result in the architect being held accountable for the owner’s increased expectations.

Architects engaged in the practice of green design may be held to a heightened standard, but they can take some steps to minimize disputes while servicing clients.

Here are a few suggestions:

• Carefully educate the clients so they can make informed decisions.

• Document the fact that appropriate advice was given.

• Make sure that design capabilities are accurately stated.

• Be certain marketing materials accurately reflect the level at which design professionals can perform and deliver.

There are additional steps that could potentially be taken with regard to any project, however, the first one on this list is the most important.

Projects will run much more smoothly if there is a great deal of communication between the owner and the design professional. Taking steps to educate the building owner will help foster reasonable expectations for how the process works and what potential level of certification may be obtained after the project is completed.

The expectations of the owner and architect should be clearly and concisely documented in letters or other written communication. This not only further informs each party, but it helps document the representations and warranties made by the architect. The use of new materials and technology should be discussed with the building owner prior to their implementation into the project. Discussions with the owner should include an explanation of potential problems that could occur from utilizing untested materials.

As building owners expect more from the performance of their buildings, they likewise expect more of the design professionals. In the end, communication remains the best key to minimizing disputes in the completion of a project.

Kevin Elmer is a licensed architect and a partner with the Springfield law firm of Daniel, Powell, Wesley & Brewer LLC. He may be reached at kelmer@dpwb.net. [[In-content Ad]]