Green Building Litigation

Moisture damaged bale walls from poor roof and window detailing in Colorado

It is the dreaded “L” word.  Litigation implies lawsuits and all sorts of things most of us in the green building sector would like to avoid.  We tend to think of ourselves as immune to some degree to the consequences of our actions.  Disputes will arise on projects, particularly the ones with larger budgets.  More is at stake and more room for error.  In the residential sector this holds true and we are just arriving at the time and place where our failures will start to show up.  The Green Building Law Blog has a small post on theories as to why not as much green building litigation is showing up this year as people were expecting.  One of the theories is:

“4. It’s just a matter of time–Green buildings are too new and the technologies have not been in place long enough to fail.  As more green buildings are constructed, more litigation will develop.”

Based on my experience designing, building and consulting on many straw bale and other alternative technologies I have already seen the beginnings of this take place.  Let us look at a simple example.

John and Mary decide they want to build a straw bale home in the Rocky Mountains.  They do some research and even hire an architect to design the project.  Early on in the design process they find a local builder who has experience, or who uses subcontractors with experience in building bale walls.  Somewhere along the way they decide, for various reasons to use earthen plaster.  This is a common choice in the alternative building realm.  Jump two years later after the project is completed and the owners have been occupying the structure for a year or more.

One day John goes outside to mow the lawn.  Upon glancing at the north wall of the building he notices some irregularities.  Upon closer inspection he can easily see that the plaster has been weathered down to the bare straw in small patches.  He freaks out.  He calls the builder and demands a repair.  The builder calls his plaster subcontractor who denies any wrongdoing and tells him this is what earth plaster does and it will need regular maintenance.  Is a little over one year too soon for “failure?”  As it turns out, it depends on who you ask.

One thing I continue to see are many people pushing earthen plaster due to it’s environmental advantages (low embodied energy, locally available, non-toxic, etc).  These qualities tend to dominate discussion about what systems to choose.  However, much is left to the owners to figure out how to maintain their buildings and what an acceptable level of maintenance can be expected.  What some owners would call “failure” others would call normal weathering and wear of the material.  As projects become more complex and costly, the owners must be aware of these issues from the outset.  The cost of ongoing regular maintenance should be considered as part of the total cost of any system.

While this is a simple example that has played out numerous times over the past three to five years, the examples will probably get a little more complex.  Take for example the fact that many buildings that incorporate adobe block or rammed earth walls have been plastered using cement-based plasters.  There are numerous examples of the demise of old cob buildings that were plastered, or rendered, with cement plasters.  Do we know the effects of cement plasters on earth buildings?  The answer is we are learning here in the U.S. and the results of our work will not be felt for decades.

At the residential scale, in the end, it will usually be the owners who take the brunt of failures since some of them can take years to show up, which can be well beyond any reasonable warranty.  The best insurance against expectations not being met is to educate yourself regarding your choices.  You cannot know all of the answers, but hiring knowledgeable consultants, designers and builders will go a long way.  You want to look for the folks who give you all of the facts and are not pushing one system or another due to one quality or characteristic that tends to dominate their beliefs.  Whatever system you choose, it should meet all of the expectations your were led to believe.

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