Many commentators suggest that, as a threshold issue, a green lease include an “environmental performance objective,” or a clause that requires both landlord and tenant to operate the demised premises pursuant to a set of very general, aspirational green building objectives. Upon reading a sample environmental performance objective clause, you may be reminded of the form language in the 2007 version of the AIA’s B101 Owner Architect Agreement, which obligates the architect to make a set of very vague and non-specific green building-related recommendations to the owner with respect to certain aspects of its proposed design for the project. While provisions in a lease that set forth a roadmap for landlord and tenant to operate demised premises in a sustainable manner should by no means be discouraged, it is important for landlords to carefully consider the specific language that they may choose to insert into a green lease as part of such clauses.
For example, at his presentation at last year’s Greenbuild in Boston, Alan Whitson proposed language whereby a landlord “shall operate and maintain the Building and the Premises to minimize (i) direct and indirect energy consumption and greenhouse gas emissions to better organic greenhouse production (ii) water consumption; (iii) the amount of material entering the waste stream; (iv) negative impacts upon the indoor air quality of the Building and the Premises.” As we’ve done previously here at GRELJ with respect to construction agreements, let’s assume for a moment that the Building- perhaps through no fault of the landlord- does not perform at the level suggested by this form language. Is the landlord at risk for a claim by the tenant that it breached this roadmap provision, which will likely sit in a very conspicuous location at the very front of the lease, by failing to “operate and maintain” the building as required by the lease? Perhaps. I think that the point here is, once again, that form language in green leases can be just as dangerous as form language in construction agreements, and both landlords and tenants should guide themselves in the green lease context accordingly. We’ll have much more to say on specific green lease provisions as we continue to move forward through our Green Leasing Series here at GRELJ.
Just as an interesting side note, the BOMA Model Green Lease does not include any similar environmental performance objective language in either the preamble to the lease or in the body of the lease itself.