It is important for design professionals, contractors, and owners to know how the risks and liabilities associated with green building projects are being allocated and to plan accordingly. As with any new building method, problems can lead to insurance claims and lawsuits, but there are steps that design professionals and contractors can take to limit their potential exposure to these risks.
Manage expectations
Owners often believe that a green building will increase employee productivity, qualify for tax incentives and result in lower operating costs. Keeping those expectations in line with what is actually achievable is a must for design professionals and contractors.
Clear and accurate communication is essential at every step of the process. That means that a design professional's and a contractor's marketing materials and contracts should not contain broad representations of the benefits that might be achieved. Such representations might be interpreted by a court as an enforceable warranty.
In selecting green products to use in a project, design professionals and contractors must look beyond marketing claims and search for test results and projects in which the product was used.
Failing to verify that a product will meet the project requirements before construction is a recipe for litigation.
Design professionals and contractors should also listen carefully to the owner's needs and agenda. Using green technologies that do not fit with the intended use of a building is a sure way to end up in a lawsuit.
For example, a solar heating and lighting system is not appropriate for an owner that needs extreme privacy. While that might be obvious, enthusiasm for green building can often lead the design professional and contractor to forget to listen to the owner.
Know the products
Claiming that a product is green has become a very common marketing method. But it is hard to know whether a product is truly green. Becoming knowledgeable about the products and not relying on marketing claims is absolutely essential.
As new green products are introduced that do not have a history of prior performance, verifying that the products will meet project specifications is increasingly important.
If there is no time to research a new product, the design and construction contract should account for the unknown risk by limiting liability, issuing a disclaimer, or charging a higher price.
Oral representations count, too
Oral representations can also land a design professional or a contractor in court. Do not say you are up to the task unless you are. Oral overstatements can lead to claims of fraudulent inducement, misrepresentation and violation of consumer protection laws.
With new opportunities for design professionals and contractors in green building come new risks. While the chances that risks will result in a lawsuit always depend on the facts of a particular situation, following the steps discussed above will lessen these chances.
While building green can offer many benefits, it remains important for the design professional and contractor to remain grounded in solid design and construction principles. Accolades and certifications will quickly become meaningless if the project winds up in litigation.
Thomas B. "Brad" Eriksen represents business and corporate clients in all aspects of business operation at Jordan Schrader Ramis PC's Vancouver office. He can be reached at 360-567-3903 or brad.eriksen@jordanschrader.com.
