One interesting legal question that could arise in the green lease context is exactly how a court would construe aspirational clauses in the event the parties dispute exactly how “aspirational” those clauses should be.
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Recent efforts by Atlanta’s restaurant industry to resist proposed green building legislation implicate the conclusions of NIBS’ report about state- and local-level green building policy which we noted last month here at GRELJ. The Atlanta Sustainable Building Draft Ordinance would require the city’s commercial buildings and residential dwellings three stories or higher to comply with either LEED or specifications drafted by the Sustainable Atlanta committee. What’s particularly interesting about the pushback is the extent to which it reflects the conclusions in the NIBS report; for example, Keisha Carter, director of public affairs of the Georgia Restaurant Association, stated in a recent piece in Nation’s Restaurant News that “[t]here needs to be more due diligence on this before the city council can even consider passing it. There is a lot of political play going on with this thing, but we’re trying to stay on top of it and be heard. There is major concern that it will pass, but the members of the city council must come to realize it’s not in any shape to be passed just yet.” This comment reminded me of language in the NIBS report which noted that “[a]t an increasing rate, state and local governments and their code/regulatory agencies are adopting building rating / certification systems, intended as voluntary systems, to be their code or regulatory requirements, often without fully understanding their benefits, tradeoffs, and costs.”
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.