Examining Issues Surrounding Uncertain Performance of Green Building Materials

December 5, 2011

Trade magazine articles warn design professionals and contractors about the perils of agreements that they engage in when it comes to certain green performance or LEED type certifications. Guarantees and warranties are a hot topic of discussion among those involved in the design and construction industry. Tension can occur between an owner who is paying for green construction methods and materials and designers and contractors, who because of untried methods and products, are wary of providing guarantees in regard to meeting green certifications or standards. Industry lawyers advise designers and contractors to specifically state in their contracts that the owner recognizes that achieving green construction goals are subject to unknown factors. Meanwhile, an attorney for a homeowner would advise a contract to specify that green building goals, guarantees and standards must be met. Why else would the owner pay more money for the material or product costs and for the time it may take to execute the installation?

Designers, contractors who specialize in green building along with new products purporting to be earth friendly are flooding the market. A look at regional advertisements in newspapers and magazines attest to promises of green construction specialization and products. Industry journals have pages of advertisements promoting green methods and products promising increased energy efficiency and sustainability. Here are some facts that might dash a homeowner’s hope and expectation in regard to latest, cutting-edge green building merchandise:

  1. New and unproven products may not provide the performance promised resulting in standard or even increased energy costs to the owners.
  2. Increased insulation can actually provide only a nominal if any energy savings to the owner if exposure to the elements is not addressed (i.e. sun exposure, wind, snow, elevation, etc).
  3. Reuse of existing or recycled materials may not integrate well with other products causing compatibility problems.
  4. New construction materials not fully tested over time could result in failures damaging other parts of a building.

Unforeseen problems caused by green construction and materials could cause damage resulting in new liability to designers and contractors.

Some designers and builders are savvy to the idea that agreeing to use best building practices may set them up to being held to a higher standard of care than designers and builders that go about a project more conventionally. The “standard of care” is a term that attorneys use. Ultimately this standard currently remains an unknown when it is applied to those involved with green construction projects.

Since the introduction of products such as EIFS exterior cladding and elastomeric paint, combined with increased energy efficiency requirements, damage can occur to structures caused by either complying with recommendations or experiencing a product that was improperly installed. EIFS exterior cladding systems have failed to perform as unintended water has seeped into the siding, causing dry rot and mold damage. Improperly applied elastomeric paint traps water inside the building envelope causing dry rot, mold and other water damage. Beyond the use of such materials, homeowners should consider how increased energy efficiency requirements impact a home or building’s ability to “breathe” resulting in moisture damage to interior walls, cabinets and other surfaces.

Garden roofs which are marketed as providing significant energy savings have often resulted in leaks causing water intrusion into a building. Increased exterior air in humid climates has resulted in unintended interior moisture causing mold and water damage.

All of these instances point up the fact that some new, unproven products, materials and methods can have unintended, negative consequences which would not occur had conventional building methods been utilized. That risk must be considered by all parties before embarking on the lofty undertaking of a green construction project.

This article was written by attorney Glen Van Dyke of the Van Dyke Law Group, which has offices in Truckee, Eldorado Hills, San Francisco and Las Vegas. Van Dyke has represented thousands of residential and commercial property owners and homeowners’ associations in the resolution of disputes over the construction of their homes or buildings. Property owners who have questions about possible legal issues concerning licensed contractors and designers in both California and Nevada can call 877-868-7013 for more information.

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