Page 313 - The Green Building Bottom Line The Real Cost of Sustainable Building

THE FINE PRINT: LEGAL ISSUES IN GREEN BUILDING PROJECTS 291

the developer and these various stakeholders (lenders, capital partners, architects, con-
tractors, and tenants, to name a few) are a number of legal agreements, each of which
must be modified in certain material respects to communicate, advance, and protect
the developer’s goal of developing a green building. These agreements must be
drafted in a manner that clearly communicates the developer’s goals, properly allo-
cates the rights and obligations of the parties, and provides the necessary flexibility for
the developer to regulate the conduct or performance of the various stakeholders
through the evolving process of developing and certifying a green building. As such,
a critical element of the developer’s strategy will be engaging an attorney who is
knowledgeable not only of the typical legal issues involved in this complex process,
but who also has a thorough understanding of green building technology and the
requirements for certification of a green building, and who can utilize this knowledge
to effectively guide the creation and negotiation of agreements with all the necessary
parties.
As the demand for green buildings in the marketplace continues to grow, the need
for knowledgeable attorneys will rapidly increase. Developing professional expertise
in this area takes a significant investment of time and study. To date, we have gained
our expertise through a number of different channels that include attending courses on
the LEED certification process and green building practices, studying for and taking
the exam to achieve the designation of LEED Accredited Professional, participating in
design charettes, getting involved in industry organizations and trade shows, develop-
ing lease and contract language, and in-the-trenches negotiation of various types of
agreements. As the number of green building projects grows, experience will reveal
new issues and new areas for study, possibly resulting in an entirely new sub-specialty
of real estate development law. Developers hiring an attorney should thoroughly
investigate that attorney’s qualifications to guide them through the green building
process.

NOTES
1 Stewart Brand, How Buildings Learn (New York: Penguin Books, 1994), p. 54.
2 Claim examples courtesy of Victor O. Schinnerer & Company, Inc. The examples have been
simplified to isolate the aspects of the claims related to green building. As of this writing, none
of the examples had actually resulted in litigation.
3 Tyler J. Krutzfeldt, managing director of Mont Vista Capital, quoted in “Carbon Trading and
Portfolio Approaches Seen as Opportunities for Owners and Investors,” Green Real Estate
News, December 2007.
4 “In Green Realty He Trusts,” CoStar Group Realty Information, Inc. 2008.
5 16 C.F.R. Part 260.
6 California Business and Professions Code Article 7, Section 17580(a).
7 Jerry Whitson, “Green Lease,” Environmental Design + Construction, July 17, 2006.