What happens if I've already jumped in?
This post began as a comment by Mitchell Swann of MDCSystems. "A question that continues to rumble thru my head is how does the owner's 'actions' related to operations and maintenance factor in to the potential for disputes and damages?".
This brings to mind two issues. While participating in a seminar a few months back the esteemed counsel sitting on the panel surmised that all litigation related to sustainable design and construction would be prosecuted using the same basic claims that exist today: delays ("That LEED certification didn't come through before my incentive options ran out!"), errors & ommissions ("You didn't get me my plaque"), negligence ("How high was that standard of care bar in 2002?"), etc. It seems to me that most of the time these issues will sort themselves out fairly and in much the same fashion as any other claim against an architect or designer. If the architect makes a reasonable effort to earn LEED certification making reasonable assumptions about how to proceed, and avoided making any boneheaded statements about their abilities in the field of sustainable design (I forgot to include misrepresentation in the list of claims above), then the law should smile favorably upon them even if something goes awry.
What interests me is what Mitchell raises above: What is really happening when you have a semi-official document that says you give a client a building whose design outperforms an ASHRAE 90.1 baseline by 25%. Does the client have any right to claim damages if the building underperforms in real life? The ASHRAE standard is not designed to cover all loads. Does the client forfeit any claims if he does not operate the building within the parameters of the design assumptions?
What can we do today to mitigate the issue? Not make any claims? This will be unavoidable problem whenever a school or municipality sets an energy benchmark for a project - see North Carolina's here requiring you to beat ASHRAE by 30% here. Are you just not going to take any of those kinds of projects? Good luck lasting five years...
It wouldn't be a fun conversation, but you could ask for a clause exempting you from any damages arising from the owner's operation of the building straying from set design assumptions. Perhaps a global warming clause is in order as well? That's bound to affect your cooling loads!
With an emerging (and proper) emphasis on tracking and more importantly reporting building performance, the real estate market will soon begin to value relative utility performance into leasing and development cost models. How this issue of designer's assumptions vs. owner operations is resolved will have real economic consequences. It is a looming problem that is not easily resolved, but a delay before it matters may be the one silver lining in having a market that undervalues the benefits energy efficiency. Being a blogger, I'm in the fortunate position to simply raise the question and ask the masses to decide on an answer... Please share your thoughts by leaving a comment!
Fun with Disclaimers
Guess what? I'm not a lawyer, and none of anything I've ever said or written or will write about should be construed by you, or your family, or your small to medium sized pets to be legal advice. Your large size pets may construe as they may, but that does not make it any more accurate.