Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

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Yesterday I posted about why Gidumal v. Site 16/17 Development LLC was not green litigation. In short, the case incorporates allegations regarding the green components of the project as support for its regular construction claims, not for failure to acheive green requirements. It got me to thinking--what would legitimate claims regarding green construction defects look like? To some extent, it depends on who the parties are and what damages they are looking to require.  But assuming the facts of Gidumal v. Site 16/17 Development LLC (a condo owner suing the developer, architect and engineeer for post-occupancy deficiencies), I think the following claims would be relevant:

1. Breach of contract--If there was a contractual promise regarding the green nature of the building or the resource (energy, water, etc.) performance of the building, this could be grounds for a breach of contract claim. This is particularly relevant where condo documents or other contractual agreements list "LEED" or "Green" as a component of the offering.
2. Lanham Act/Consumer Protection violation-- The Lanham Act is a federal claim which prohibits false advertising, but it can only be brought by a competitor.  It requires the plaintiff to prove that there was a false or misleading statement made, the statement was used in commercial advertising or promotion, and the statement creates a likelihood of harm to the plaintiff. Most states, including New York (General Business Law Section 349 and 350), have consumer protection laws which function similarly, and can be brought by consumers for false advertising and deceptive trade practices.  Often such statutes provide for treble damage recovery. 
3. Fraud/Misrepresentation--To the extent that a plaintiff can plead with specificity that the owner, developer, architect or contractor knew that the building would not be green or was not being constructed to green standards, and intended that the condo owner rely on their representations regarding the green nature of the building, there would be claims for fraud and its cousin, misrepresentation.
4. Malpractice against architect, contractor or engineer--If it can be proven that these professionals acted outside the standard of care of a reasonable architect in constructing the building, this might be a valid claim.  Evidence of gross disparity between the energy modeling and the energy performance might be used as proof that a reasonable architect or engineer would not have designed or constructed a building in that way.
5. Construction defect claims against contractor--Certain states have specific laws for hidden construction defects, which may be available in addition to negligence or malpractice claims.
6. Breach of Warranty or Consumer Protection claim against manufacturer of green components--To the extent that the failure of the green features is due to failure of the components--the heat pump, or the insulation--there may be a claim for breach of warranty, consumer fraud or even breach of contract.  
7. Breach of Contract against the operator of the building--To the extent that the green failure is due to failure to maintain and upkeep the building, there may be a claim against the company operating or managing the facilities, particularly if their contract specifies that they have to operate the green components.   This claim may not be available to individual condo owners, but rather to the condo association or whomever is in contractual privity with the operating company.

The above is meant for information purposes only, and not to be relied upon as legal advice, as all situations are different.  But perhaps we will see an amended complaint in Gidumal v. Site 16/17 Development LLC that brings in some or all of these concepts.