Most legal issues related to green building projects are associated with the efforts of obtaining a certificate to allow the constructions of project that meets the green building requirements and standards (USGBC, 2013). The widely known green building standard in the USA are stipulated in the Leadership in Energy and Environmental Design rating system (LEED). These paper discuss the legal issues involving LEEDS certification and some other related topics
LEED certification follows a very stringent set of standards that must be adhered to, if any project is to be termed as environmentally green (USGBC, 2013). The rating system allows four categories of certification. Basic Certified, the Silver certification, The Gold Certification and the highest of them, Platinum Certification. The levels of certification is achieved based on several perquisites and involves a minimum number of possible points (USGBC, 2013). The real ability of a certain building or project to acquire the desired level of LEED certification is very uncertain and unpredictable and may be dependent upon a number of factor. Such factors included; the material and design to be used for the projects, the skills set of the contacted contractors and finally the nature of the supporting documentation.
The United States Green Building Council also known as USGBC, a nonprofit organisation that came up with LEED, has created a the rating systems numbers based on the type of construction or structure is being evaluated Under this system, the building get certification to meeting certain standards and thereafter is subjected to a series of routine checks and inspections (USGBC, 2013) .The LEED rating system allocates several points to a design proposal, and then goes on to inspect its primary concern, which is the environment and by extension human health. The LEED as earlier mentioned, take place on four levels, based on the point accrued during the inspection and evaluation. For a project to apply for LEED certification, it must have been developed or had at least one designated LEED personnel having been involved in the building of the project (Bank, 2013). The personnel should be a professional in green building construction accredited by LEED, this means they should have a permit having passed an examination given by USGC. Some of the legal emerging issues related to LEED certification include;
Lien and bond claims
A lien is a claim made by against a proprietor by a developer or a contractor who has supplied material or labour for the proprietor on their projects (Prum, 2012). They are meant to protect the contractors from the risk of losing their pay for the service rendered or goods delivered. There are a number valuable remedies that can be given to the arrived party. In addition, bond and lien provide a successful platform for the claimant and the proprietor to recover their legal fees (Prum, 2012). There are strict compliance laws in most state in the with regards to a surety bond loss or loss of the interest in the case of a lien. Minnesota Supreme Court, for example recognizes that there are meritorious calms that may get lost as a consequence of its strict interpretation of the bond statute (Prum, 2012). However, the law still holds. This can be very detrimental to a general contractor trying to get paid, especially if the proprietor is running on debts.
Differing site conditions
Differing sites conditions also known as unknown condition or changed conditions are defined as hidden physical conditions at a site of a project that are different from the condition of the site identified or shown to the contractor during the period they were bidding (Kelley, 2012). The difficulty accompanied with encountering a changed site condition is that the contractor had not anticipated during the bidding. Therefore, it presents condition that were not planned or budgeted for (Kelley, 2012). The contractor knows that there is nothing on the plan. Schedule or the budget that can accommodate the new reality. Secondly, most of these differing site condition have to do with underground conditions and as work has to begin at the onset of the project, differing site condition leads to major potential delays.
Alternative dispute resolution
Alternative dispute resolution (ADR) is basically different ways of dealing with a conflict other than the laid out conventional manner (Winter, 2015). The most successful forums are those that depends a larger extend on among other the deficiencies with the project and the attitude of the warring parties. The failure to attain the preferred level of certification or obtain some level of environmental performance could be as a result of a combination of several factors and correction measure which include reapplication (Winter, 2015).
Mediation can be a significant and effective alternative dispute resolution method (Winter, 2015). Applying mediation where the desired certification was not achieved or where the parties involved in the project have failed to reach a consensus on their settlement claims.
Arbitration: In complex cases, it is wise to source the expertise of an arbitrator, a neutral party with experience in sustainable design (Winter, 2015). According to Winter, (2015), in other cases, the conflicts can be addressed as they come. Standards can be aligned with new codes or orders to automatically make correction when identified
A construction defect is a deficiency that develops in a building construction as a result of a failure by the contracted person to adhere to the requirement of the certifying body (Brazier, 2015). Some of the most dangerous defects lead to total collapse of the building that might lead to fatality or unforeseen accidents and loss of property (Brazier, 2015). Some defects pose minimal risk, but even they have their impact, especially in terms of the loss incurred while trying to correct. The legal theories surrounding constructions defects claims that a property owner may base their case include breach of contract where they argue that the contractor failed to adhere to their agreed expectation (Brazier, 2015). Negligence, failure to disclose among others. Construction defects often take a long time to develop however, once noted, the owner should file their case soon enough since there are time limit for such suits.
Some of the legislative updates as far as LEED certification is concerned have to do with the number of states in America that have passed legislations against it CITATION Ben13 \l 1033 (Bennett, 2013). Most of ati-LEED legislation in these states involves the desire protecting the lumber industry. States like Alabama, Florida, Maine, Ohio, Tennessee and Carolina have approved these legislations (Bennett, 2013). LEEDs checklist which involves a clear-cut wood for construction has put undue pressure on the local timber industry (Bennett, 2013). They recommend that LEED can continue being the certifying system but the building material ought to come from the local market otherwise, it will be counterproductive and unsustainable
Green building is spreading even beyond the American border and with it, the law is evolving, that will guide these transitions and ensure a controlled and predictable shift towards a greener environment build sustainably. LEED is paving way for such a future, and despite it numerous legal issues that accompany any requirement for certification, it is delivering.
Council, U.S. G. B. (2013). Guide to LEED certification.
Banks, Robin G. (2013). Innovative Design: Risks and Rewards for the Design Professional.
Bennett, R., Codiga, D (2013). Sustainability in America's cities: creating the green metropolis. Island Press.
Brazier, J. (2015). Effect of Brisbane on the Construction Defects Statute of Limitations, The. LA Law., 38, 14.
Kelley, G. S. (2012) Differing Site Conditions. Construction Law: An Introduction for Engineers, Ar chitects, and Contractors, 171-180.
Prum, D. A., & Medders, L. A. (2012). The Bonds That Tie: Will A Performance Bond Require that a Surety Deliver a Certified Green Building?. Hastings Business Law Journal, 9(1).
Winter, B. (2015). Legislation and Standards. The Sustainable Laboratory Handbook: Design, Equipment, Operation, 401-412.
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- Date: 8 November 2015
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