Legal issues that will help the 90's

Real Estate Weekly, Jan 27, 1993 by Barry LePatner

Over the past three years, we have witnessed events that have rocked our economy, reshaped our international perspectives and caused us to question many of the assumptions built up over a lifetime.

Certainly, each of us has felt the impact of the precipitous economic decline which followed the boom of the 80's. Each of us has begun to realize the worldwide and national changes which followed the fall of communism and the chimerical demise of the Berlin Wall. And, each of us has seen how new and radical computer technologies relentlessly reshape our daily lives and move us into the future at breakneck speed.

It is within this revolutionary framework that we must view the legal trends affecting the design and real estate community in the last years of the 20th century. The law's impact on issues facing the community in recent years has been dramatic, but not traumatic. Following are three developments and the ways in which the design and real estate community will be required to adjust in the years ahead.

The Americans with Disabilities Act

The passage of the Americans with Disabilities Act (ADA) will have significant impact on the design community. The Act sets forth requirements for new construction and obligates property owners to modify existing structures to accommodate the disabled. Design professionals on commercial projects will find that their clients will expect assistance in interpreting provisions of the Act.

Since the statute is new, many important issues of interpretation will be determined by the administrative agencies and courts. The remedial provisions of the act, however, create powerful incentives for compliance. On the design and construction side, failure to comply with the requirements can yield a dissatisfied client, who incurs legal fees and additional renovation expenses. Non-compliance can also lead to expensive legal disputes with employees or job applicants.

It is likely that specialists in ADA requirements will emerge to serve the design and real estate community as the requirements of ADA become more widely known and understood.

Alternated Dispute Resolution

An increasing number of construction industry disputes are being resolved through an alternate dispute resolution (ADR) process. This supplementary procedure - a form of mediation seeks to resolve disputes in their early stages. ADR arose from an effort to assist parties in reaching an early settlement of a claim by negotiation.

An independent party is appointed to act as an impartial arbiter, advising and consulting with each involved party to help reach an agreement. Arbitration and litigation have long been viewed as costly and time-consuming procedures in an already backlogged legal system. Neither is recognized as a ready forum for resolving the often complex issues bound up in an owner/designer/contractor dispute.

While, ADR has not yet proven to be Lie panacea in its limited experience in the design and construction community, the trend will be to continue offering mediation as an alternative to the traditional dispute mechanism. Attention must be paid to the precise strategies for utilizing mediation to its best advantage.

Indoor Air Quality

The quality of the indoor air we breath is becoming an increasing cause of concern. Having labored for decades to seal buildings and develop sophisticated HVAC systems, we now receive reports that the recirculated air we breath in our offices, schools and factoties may be contaminated by harmful bacteria, contaminants and particularities (dust). Thus, legal liability issues involving sick building syndrome seem likely to develop.

Serious concerns in this area will prompt designers and engineers to create systems more readily capable of bringing in fresh air, filtering out contaminants and monitoring air quality, levels to ensure the safety of all building occupants.

As standards are redefined in the 90's, we can anticipate increasing concern and confusion in this yet-to-be-defined area.

From the three issues explored, we can see that the design and real estate community is adjusting to the changes taking place around us. In the next few years, decisions by government agencies and the courts will help set the parameters as we move ahead in these areas.