Weatherization Department
The Friday Report Friday November 8,1996
FromWright Energy's
Weatherization Network Since 1984
970-349-0551 fax
970-349-0923 voice MichaelR@WrightEnergy.com email
WebSite http://WrightEnergy.com
Last updated 10/31/96.
Starting to cook
FACTORING AIR QUALITY IN REAL ESTATE DEALS
Will indoor air quality will be the 'asbestos litigation of the 1990s'?
Is "sick building syndrome" a factor in commercial real estate
transactions?
A number of sick building cases--involving claims that a building's indoor
environment is not healthy--have received widespread media attention in
the last several months. In fact, a recent edition of public television's
"Nova" series focused on the rather serious indoor air quality
problems discovered at Brigham & Women's Hospital and the
new Registry of Motor Vehicles building in Roxbury.
Accordingly, commercial landlords and tenants are beginning to ask whether
sick building syndrome is a "real" problem which needs to be addressed
in transaction documents, leases, and maintenance agreements-
-or whether indoor air quality is merely an issue being driven by the news
media.
Indoor air quality issues have undoubtedly been sensationalized to a degree.
After all, the term "sick building syndrome" sounds like the title
of a bad science fiction movie. However, it is important to understand that
the U.S. Environmental Protection Agency recently declared indoor air pollution
to be among the top five environmental risks to public health in this country.
Some commentators are even
suggesting that indoor air quality litigation will be the "asbestos
litigation of the 1990s."
Recent efforts to solve indoor air quality problems have focused on a combination
of source management and ventilation system maintenance. Most indoor air
pollution comes from interior sources.
A premium was placed on energy efficiency after the 1973 oil embargo and
many office buildings and other structures were "sealed" to reduce
energy costs. Not surprisingly, complaints about indoor air quality were
almost unheard of until building specifications began calling for the introduction
of less
fresh air.
It is important to note that landlords are likely to end up bearing a disproportionate
share of any liabilities associated with indoor air quality problems because
most tenant employers are insulated from liability, at least to some extent,
through the operation of worker' s compensation statutes. In other words,
employees who have been affected
by poor indoor air quality will often choose to sue the landlord as a "deep
pocket."
Naturally, property owners also stand to lose when tenants elect to vacate
buildings because of alleged concerns about sick building syndrome. This
focus on property owners can be problematic because it is generally agreed
that materials associated with a tenant's "build-out"
activities, including carpeting, drapes and office equipment, can have dramatic
impacts on indoor air quality. Moreover, simply reconfiguring
an office without regard to the design of the existing HVAC system can cause
serious indoor air quality problems.
Although the case law related to "sick building syndrome" is still
in its infancy, it is clear that many courts are willing to expand the duty
of care which is owed by property owners, imposing an obligation to prevent
reasonably foreseeable harm from indoor air quality problems.
For the most part, traditional legal theories grounded in negligence, professional
liability, strict liability, express and implied warranty, fraud and misrepresentation
have been used to press sick building claims against employers, landlords,
contractors and design professionals.
However, plaintiffs are also beginning to assert more novel legal theories,
including claims for "forced eviction," claims for intentional
or negligent infliction of emotional distress, claims related to "
fear of cancer" and products liability claims. Some plaintiffs have
even attempted to assert claims under the Americans with Disabilities Act,
arguing that sensitivity to a particular indoor environment amounts to a
"disability" requiring a "reasonable accommodation."
Makes you want a breath of fresh air.
"You got to be careful if you dont know where your'e going, because
you might not get there." - Yogi Berra
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