Page 299 - The Green Building Bottom Line The Real Cost of Sustainable Building

THE FINE PRINT: LEGAL ISSUES IN GREEN BUILDING PROJECTS 277

3 Not overstate environmental benefits. It might be deceptive to advertise that a
building component is recycled, for example, if it is also of questionable safety.

Objective, easily verifiable, specific claims are less likely to be challenged.
Referring to a project’s LEED or other certification can be a useful shorthand for com-
municating that a project is green. When negotiating contracts with brokerage and
marketing firms, developers should address how those parties will market projects,
both to ensure that the green attributes of a project are communicated to the public and
to require that those attributes are presented in a manner that complies with the law.

The Green Lease

The operative contract between a landlord and a tenant is the lease. The lease agree-
ment allocates risks and responsibilities, as well as costs, and controls the behavior of
the parties. Without a well drafted and properly negotiated lease agreement, the devel-
oper of a green building may not be able to achieve and maintain the type of building
desired.
To date, the desire to construct and lease space in green buildings (other than
owner-occupied buildings) has been driven by the developer of the building, rather
than the tenant. As such, the lease agreement must be primarily focused on regulating
the tenant’s behavior. As more tenants, particularly those tenants leasing significant
amounts of space or who have particular leverage in a lease transaction, begin seek-
ing out green buildings or demanding that buildings are constructed and operated
more sustainably, lease agreements will begin to incorporate obligations and require-
ments to be met by the landlord with respect to the design, performance, and man-
agement of the building. For purposes of analyzing certain lease provisions in this
chapter, however, we will assume that the landlord is the primary party promoting the
green elements of the building and is seeking to regulate the tenant’s behavior through
the lease agreement.
Structuring a “green lease” must begin with an understanding of the design and per-
formance objectives of the building. Specifically, the green features of a building must
be identified to determine if any specific modifications to the lease agreement are
required. Examples include the energy management system of the building; whether
or not the building has a green roof, water management and reuse programs, manda-
tory or voluntary recycling programs, parking and integration with public transit; and
the extent to which the developer desires to regulate the interior design and construc-
tion of the tenant’s space in addition to the structure and common areas of the build-
ing. In some cases, the lease agreement will simply require the tenant to acknowledge
the existence of these features or programs. In others, it will require the tenant to com-
ply with certain landlord requirements, accept regulation of its operations to some
extent, and pay the costs of certain of these features and programs as a component of
its rent under the lease.