Green contracts: learn from ADA/FHA legal history

In the prior post, I mentioned the potential litigation pitfalls that might arise in sustainable or green construction. Thrown in as an aside, it referenced this post at Green Building Law Update.

What spurred my thinking in that direction was an article in the September 2008 Multifamily Executive about the Equal Rights Center and its campaign to enforce Fair Housing and ADA regulations. The article, with the provocative title “Mission from God” describes the ongoing discussion between the ERC and the multifamily industry.

[Disclosure: I know several people at Archstone-Smith, Bozzuto, KSI/Kettler, and Trammell who were involved in these lawsuits. I know attorney Mike Skojec professionally.]

Shorter version:

ERC consulted with and then successfully pursued redress against major multifamily owners for violations of ADA and Fair Housing Act. Companies include: Archstone-Smith, Bozzuto, Avalon Bay (pre-Archstone), Equity Residential, Post Properties, CBRE/Trammel, Camden, Gables, KSI/Kettler. Archstone retrofitted 12,000 units for about $20mm. Multifamily industry very unhappy with ERC tactics.

I know many of the folks involved and I don’t ascribe any nefarious motives (for economy or otherwise) to them. These are all professionals with many, many years in the industry and no desire to be caught short on their compliance, particularly in their home markets. Nonetheless, as developers, there is a strong dependence upon architects and other consultants to identify all areas of non-compliance and deliver a compliant building. Unfortunately, architects and consultants don’t have the bonding capacity or other resources that these larger developers do.

The lesson for green or sustainable building contracts is that even where a clear legislative and regulatory history exists, as it does for ADA and FHA, honest but expensive disagreements will occur. Just Google “reasonable accommodation” and “housing” for a peek at the potential for green litigation.