The Liability of Building Green

As design and construction professionals seek to make their buildings more sustainable, legal issues related to liability become increasingly important. To help individuals protect themselves, attorney and GBI board member, Ujjval Vyas, helped to develop the GBI's three part webinar series, The Liability of Building Green.

He also highlighted some key points for GBI Insight:

Defining Green
"The biggest issue from a liability perspective arises from mismatched expectations," says Vyas. "While the terms green, sustainability, and high performance are used interchangeably, high performance is the only one associated with measurable and verifiable outcomes—which are essential to reducing risk.

"When an owner says he wants green, he or she may be under the impression that some type of performance will be delivered for the added costs. But unless it's been discussed and agreed upon, the architect may give little thought to specific outcomes such as reduced operating costs, except in vague terms. This increases the potential for litigation."

Due Diligence
Although technological advances in the construction industry have not been as important as advocacy or politics, they have played an important role in capturing the imagination regarding new ways of achieving "green."

"Clearly the invention of new types of glass coatings and assemblies, advanced HVAC delivery, filtering and refrigeration systems, and smaller scale innovations linked to energy delivery allow new design and building geared to environmental and energy concerns," says Vyas. "But it's important to look at any design specification in light of its possible long-term performance failure. For example, underfloor air distribution systems in commercial buildings have become a favorite of sustainability designers, but recent analysis has shown leakage rates that far exceed normal limits. Bamboo flooring, wheatboard cabinetry and photovoltaics are other common specifications that have shown potential for inadequate performance. This isn't to say they shouldn't be used, just that designers and building professionals need to be aware of this potential."

Rating Systems
Most rating systems in the U.S. are not currently designed to deliver measurable results. Because they were developed by architects, they tend to be primarily concerned with the design phase of the green building effort. So, while certification is a general indication that green issues were addressed—and is a useful tool in terms of marketing, community relations, etc.—it is not an indication of building performance. It is crucial to remember this since owners and others may mistakenly come to rely on these representations and find their expectations unfulfilled.

Parting Thought
Be realistic. "Many architects and builders aren't aware that they are subject to increased risks based on their own enthusiasm," says Vyas. "If you have to sell the idea of green to a client, be careful not to create elevated expectations that result in litigation down the road. And remember to put it in writing."

Ujjval K. Vyas, Ph.D., J.D., concentrates his legal practice in the area of construction law, specializing in sustainable design and building. He has also taught at architecture schools in the United States and Canada, and served as director of the Institute for Architecture and the Humanities in Chicago.