By Sarah E. Fisher, Esq.

"Green" building has become increasingly popular as consumers look for ways to conserve resources, protect their health and, ultimately, save money. Cutting edge green building methods and products are no doubt exciting, but are too new to be used without first considering their unknown risks. Issues can arise from the performance of a particular system or product, or from a difference in the anticipated and actual return on a green build investment. A contractor who offers green build services should take care not to make representations to an owner client that could be interpreted as a warranty or a guarantee of either of these things.

A contractor should be aware that while he or she may speak of warranties in terms of a product manufacturer’s warranty, that may not be what an owner hears. Instead, an owner may hear promises about the contractor’s work. Contractors should be clear about this. Additionally, they should not state that a product will perform above-and-beyond what the manufacturer warrants a product will do. Many new green products have not been around long enough to know their limits and may have limited, or even no, warranties as a result. If an owner is not comfortable taking on this risk, it would be wise to steer them toward more conventional building products and methods.

An owner often wants to invest in green building because of the related cost benefits. However, green building is still so new that there are no clear answers as to when one will see a return on the investment. Many green building approaches are designed to provide lower operating costs over the lifetime of a building, not necessarily in the first few years. Furthermore, how do you calculate a return on a green investment? Is it recouping the cost of installing the system? Of operating it? Or is it the collective benefit received from using the green building system in the context of the building as a whole? Contractors should be cautious when marketing their green building products and methods and avoid making express promises to their customers about specific costs savings.