Real Estate Development Law Blog : Real Estate Development Lawyer & Attorney : Summit Law Group : Seattle, WA : Land Use & Green Building

The USGBC announced on September 2, 2009 a change in its occupancy requirement for LEED for Existing Buildings: Operation and Maintenance. The occupancy rate required for certification has been lowered from 75% to 50%. The USGBC indicates that this change is in response to current market realities that have disqualified an unprecedented number of properties from pursuing LEED certification.

Bottom line: The requirements for green building certification are constantly changing and building owners and tenants must be aware of how they might be affected by the changes. In this case, it is possible that the lower occupancy requirement will change the building’s performance data. This, in turn, could have an impact on performance specifications in contract and lease documents.

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As discussed in Mireya Navarro's recent New York Times article, the difference between building design and construction and building performance may be substantial. Owner and tenants alike should be aware of how these differences may affect LEED certification.

On August 25, 2009, the USGBC announced its Building Performance Initiative. Under the initiative, the USGBC would begin collecting data from all buildings that have achieved LEED certification for future analysis. This program is voluntary and the USGBC maintains privacy policies, however, as noted in my blog entry on September 2 (Seattle Contemplates Building Performance Reporting!), the reality of the mandatory disclosure of a building’s performance may not be for behind.

This change is in conjunction with a USGBC announcement earlier this year that will require that all LEED certified projects--from new construction to existing buildings provide energy and water usage data for at least five years. Furthermore, the requirement would remain in effect regardless of whether the building changes ownership or lessee. Non-compliance could lead to de-certification of any project that fails to comply with this requirement.

Bottom line: What do these changes mean to owners, designer, contractors, landlords and tenants? Not only should an owner be cognizant of the possibility that a LEED certified building will under-perform, but owners must include the appropriate lease language to allow for the collection of all relevant environmental performance data.

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