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.

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