The Law Firm of Bucknam Black Davis PC

Vermont Energy Efficiency Standards for residential construction–a potential trap for builders and a cause of action for injured homeowners


Ed. Note:  this article was written by Attorney Bob Brazil and was the subject of last week’s “Law Matters” on Magic 97.7
In 1997 Vermont passed the “Vermont Residential Building Energy Standards” (“RBES”).  Pursuant to this law, all residential construction occurring after July 1, 1998 must meet specific energy efficiency standards.
“Residential construction” is defined by statute as the new construction of one family dwellings, two family dwellings, multi-family housing three stories or less in height and the construction of residential additions that create 500 square feet of new space or more.  It also includes modular homes not on a permanent chassis.
“Residential construction” does not include “hunting camps.” Other exemptions include: pre- July 1, 1998 construction; commercial buildings; high rise residential buildings; mobile homes (although “site built” components of a mobile home are NOT exempt); low energy use buildings or additions; unconditioned buildings (no heating or cooling systems).  Construction of a qualifying addition does not create a requirement that the entire building be brought to code.  For example, if a 600 square foot addition is built onto a home built in 1997, only the addition has to be built to code.  The remainder of the home is exempt.
“Owner/builders”  are exempt from the “technical requirements” under some specific circumstances (not an Act 250 project, owner/builder must live in the dwelling, etc.), but they must still complete and file with the state a disclosure statement certifying that the home does/does not meet the technical requirements. Before entering into a binding Purchase and Sale agreement the owner/builder must disclose in writing to the purchaser any systems in the home that do not meet the energy code.
The RBES were last amended by the Legislature in 2004 and became effective January, 2005. Two broad requirements are imposed by the law: 1) minimum standards for the use of energy-efficient building components construction practices and 2) a certification requirement for reporting compliance
The “technical requirements” of meeting Vermont’s Energy Code are a bit complicated.  The basic idea, however, is that the law requires certain levels of efficiency for ventilation, heating and cooling, and insulation systems.  The details of the code can be found at the Vermont Public Service website.
Vermont’s law is unusual in that it requires the builder to self-certify compliance.  It requires the builder to know the energy code, build to minimum efficiency standards and then submit certification of compliance.  Generally, no plan reviews or inspections by Code officials occur.
A “Residential Building Energy Standards Certificate” must be filed for each new home covered by the Energy Code, unless the home falls within the “owner/builder” exemption (then an “Owner/Builder Disclosure Statement” is required). The Certificate contains information about the efficiency of systems/components used in construction, and the builder states under oath that the home was constructed in accordance with the energy code. 
The certificate can be issued by a licensed professional engineer, an architect or accredited home energy rating organization.  However, the builder is ultimately responsible for ensuring that a certificate is issued and filed.  The original certificate must be “attached to the house” by permanently affixing it to or near the electrical panel or heating system. Copies must also be filed with the town clerk of the municipality where the home is located as well as with the department of Public Service.
Vermont’s law provides for a private cause of action against the person having the responsibility for issuing the certificate when a home is not built in compliance with the energy code. Damages available include court costs, attorney’s fees, the costs of increased energy consumption, and the cost of labor and materials necessary to bring the home into compliance.

Avoiding costly home construction litigation

March 26, 2011adminConstruction


Author’s note:  This was first published in our Vermont and New Hampshire real estate blog, now discontinued. 

 In our office, we frequently have clients who have had work done on their homes–new roofs, additions, renovations, and even new construction–and the work is not satisfactory.  Homeowners are faced with potentially expensive litigation against the contractor to remedy the wrong done to them.  There are legal remedies against a contractor who has not performed his or her job, including claims for breach of contract and consumer fraud claims.  However, litigation is expensive, and collecting your judgment may be problematic. For example, the contractor may be operating as a corporation or LLC, and those entities may have no assets from which to collect the judgment.  In addition, married couples in Vermont are not liable for any sole debts or liabilities, so if all of your contractor’s assets are held with his or her spouse, those assets are not available to you to satisfy a judgment. Finally, not only is litigation expensive, but there are long delays before your case will be heard.   Therefore, it is advisable to do some preventive medicine before the work has begun, so that if the work is substandard, you will have an easier time obtaining compensation for your loss. Here are some things you must do to avoid costly litigation for sub-par work:

1. Have a written agreement prepared and signed by you and the contractor.  This agreement should contain specific provisions outlining what services the contractor will perform, and what materials he will purchase.  The type and quality of the material and the quality of the service should be included. Verbal agreements are legal, but parties may remember differently what the terms of the agreement are.  A clearly written contract will dispel any doubts as to the terms of the agreement.

2. Provisions should be made in the agreement for inspection at regular intervals or when a portion of the project is complete. Depending on the size, cost and type of  project, you should consider using a professional inspector.

3. The agreement should also include a time frame for completion, and specific provisions for payment upon completion and inspection of parts or all of the project.

4. The agreement should include specific costs, with provisions for cost overruns only upon your written consent.

5. The agreement should require proof that the skilled workers on the project have appropriate licenses such as a plumber’s or electrician’s license.

6.  If you are dealing with a small contractor who has a separate corporation or LLC, the contractor should sign the agreement not only as officer of the corporation, but also personally. 

7.  This is important:  you must require proof of liability insurance that will cover reimbursement to you if the work is substandard or incomplete.  Require that the contractor provide you not only with the Insurance declaration page, but the entire policy. You need to make sure the policy covers the contractor’s work, and that there are no exclusions that pertain to your project.  For instance, in some some cases the insurance company refuses coverage because the contractor used subcontractors, which were not covered under the policy.  Depending on the project, it is advisable to request that the contractor obtain a performance bond.

8. Finally, it is advisable to have an attorney prepare the agreement and review the insurance policy or the performance bond before work begins.  This is a good investment to prevent incurring greater attorneys fees in litigation if the contractor breaches the agreement with you. 

Remember, a contractor who is willing to sign a clearly written contract providing for safeguards for the homeowner, and who is willing to provide proof of insurance or performance bond coverage will be more likely to do the job right, thus leaving you satisfied.

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