Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

Builder Self-Verification & Certifications

SLS Green ConstructionFor this week’s Guest Post Friday here at Construction Law Musings, we welcome Sean Lintow (@SLSConstruction) of SLS Construction. Sean has 20 years in the construction and project management fields, started current business in Cullman county Alabama in 2006 after moving from Arizona. He has some commercial experience, but specialize mainly in residential remodeling, building custom decks and am a proud member of NARI, NADRA, along with Certified Lead Renovator & Firm. Check out his great resources at his RRP page, Alabama Green Building Solutions and Services, and Homeowners & Trades Resource Center).

During last downturn (caused in this area – by banking meltdown, not RE market) instead of locking down all spending, Sean went out & pursued training & certification in the “green” / energy efficiency markets; namely RESNET & BPI Building Analyst & Envelope fields. ENERGY STAR partner & verifier, EPA Indoor airPLUS verifier, member USGBC & USGBC Alabama, Level 1 IR, Volunteer Energy Rater for Habitat for Humanity, and Builders Challenge Partner & Verifier.

First off, I would like to thank snoopy, oops, I mean Chris for giving me this opportunity to be a part of his weekly guest musings, and to say that I am honored by the invitation. Like many of you reading Chris’s blog, you probably practice construction law, are involved in the building trades or are interested in “LEEDigation.” By this token, I am assuming that many of you are in the practice of minimizing ones potential (or their clients) to being sued. With this in mind, I would like to start with two recent examples of maybe we still need to think things through, at least a little bit more.

Should affordable housing be certified?

Back in October, there was a Green Legal Matters conference held in New Orleans that mainly revolved around LEED, and the commercial aspects of it. During this conference, there was a tweet about publically financed affordable housing – should it be certified by LEED, not at all, or by another standard?

I happen to believe that in this case, LEED is out of the picture and it appeared that the majority agreed with this sentiment, for numerous reasons ranging from certification costs, building costs, to LEED simply not being the right program for affordable housing, etc… My reply echoed those sentiments, but I also stated that the houses should be certified to meet ENERGY STAR standards. Amazingly one lawyers reply back to this tweet was – why ENERGY STAR, why can’t we just look at their utility bills?

MN GreenStar & Builder Verifications:

In case you missed the news in late October, MN GreenStar & the BATC (Builders Association of the Twin Cities) had a major falling out, and one of the issues revolved around Builder Verifications. If you are interested, I have a full copy of the email that went out from MN GreenStar on this issue is located on my site. Now in case you happen to be wondering, well are they going to go with LEED, NAHB, or any other one – the answer would be no. The problem is, all these residential programs require an actual 3rd party verification, so they are apparently going to try to create their own.

Green Certifications & Builder Verifications:

First, let me state emphatically that mandating that any one “private” standard or program is required for every new house built, is not a good thing. I do believe though that all houses need to be built to the latest codes / adopted standards & tested or inspected to make sure that they meet those. As an FYI – ENERGY STAR is probably one of the best government standards out there that truly works. That maybe one reason it is used as a baseline for LEED, NAHB, GreenStar, Earth Craft, and numerous other “green” home standards.

Builder Verification: Up until 6 months ago, I might have agreed with many of you on a few items – surely, I could verify all this, why do I need to add this additional expense? Why do I need another insulation inspection, isn’t the code official’s sign off good enough? On the flip side of the coin, as one that has gone onto houses only a year or two old & having to do major renovations, I can say not everyone builds to code, much less to any higher standard. As a builder though, I can quite honestly say after going through (at least the RESNET portion of the) training, that what a qualified Rater can bring to the table is well worth the additional money.

  • The modeling software and plan review alone can help you catch potential problem areas before hand and allow you to see what improvements can be made, and which items will not help at all.
  • The insulation checklist, even if you are quality conscious – you will occasionally miss an item and that third pair of eyes can help you catch something minor before it is too late.
  • The final inspection, which includes Blower Door Testing and testing of the Duct systems, will help give you third party tested numbers to prove that you built it properly and it meets the standards.
  • Why can’t I be certified to do this – in some cases you can, but if there is an issue, can you imagine the fun the other lawyer will have when you say that you did your own verification & something was wrong?

In my case, one of the houses I built I did my own self-verification on. When I was completing my Certification process, I actually used it to see if I would have made the grade, which I easily did. With that said, there were a few issues and I blogged about the lessons learned from both process. The two most noticeable ones was the air leakage from a utility room door that I forgot to foam around & the ERV running more than necessary – by simply correcting those items for about $45 we were able to cut the electric portion of the house by about $47 dollars a year & shave 3 points off the HERS score.

Utility Bills: I really do love how people place so much stock in the utility bills. Granted, I encourage everyone to track their utility usage, but that is to help spot issues early on. A utility bill can be a great report card on how well a house was built, how well it is maintained, but most importantly how well an owner does or does not conserve. For example, an 1800’s house with no AC & only a wood stove may have lower electric bills than a new ranch house built next door, but that in no way is indicative of how well either house was built or the comfort level. The biggest catch with electric bills is you actually need something to compare it to, to help one get a grade on their usage. Therein lays the modeling aspect of the ENERGY STAR program with a baseline measurement of how a house should perform with normal use. (Not leaving the door wide open with the AC on, or the lights on all night long)

In closing, I would like to leave you with one last example of the benefits of catching items early on which I wrote about in another Guest Blog Post: Ana M Manzo’s – the place of dreams: Working in Harmony

“To elaborate a little more on this point, when building a custom home, or a commercial property, the more time you spend up front, getting the design & details right, will generally pay dividends later. Recently I saw a great example of this in an article I read entitles the $124,000 rule; as I recall they used an inverted pyramid & broke it down based on when a problem was found.

  • $124,000 when the problem becomes a construction defect and ends up in court
  • $12,400 if the problem is found after the customer moves in
  • $1,240 if you find the problem after the work is completed, but before the customer moves in
  • $124 if you catch the problem after it has been installed, but before you move onto the next step
  • $12.40 if you catch the problem in the design stage before work commences

Once again, I wish to thank Chris for this opportunity and I hope all of you had a great and wonderful Thanksgiving.

As always, Sean and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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9 Responses to Builder Self-Verification & Certifications

  1. The inverted pyramid and corresponding description sounds exactly like the one I developed for a Construction Defects Presentation for our insured construction members and my eNeswletter called Quality News Network (QNN).
    Larry Owen

  2. There is a green building standard designed for affordable housing – Green Communities and their related Green Communities Criteria. It is built on Energy Star and requires Energy Star certification, but takes it further into other areas of green building. It’s required for (subsidized) affordable housing in several states and available to anyone for no cost. Certification is also free, although builders have to cover the Energy Star certification.

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