The little clause that killed a green building sale

Here’s a live action green building underwriting story.

Basically, it underscores the need for property owners and lenders to make sure their underwriting processes are tailored to certified green and/or Energy Star qualified buildings.

Tonight I received a note from a rather overworked, but sharp-eyed investment analyst, under the gun to underwrite his firm’s purchase of an office building under a very tough deadline.

He was not only frazzled, but also frustrated — prompting his note. You see, earlier in the deal, he had been excited about helping his firm to buy a LEED-certified building. Working on this acquisition gave him the hands-on chance to participate in directing more environmentally responsible investment choices — what he really wants to do more of in his career.

The excitement turned to frustration, however, as he came across the following phrase in the anchor tenant’s lease:

“Landlord shall not be required to impose on Tenant or any other tenant of the Building, requirements for Tenant or other tenants to comply with any certification requirements under the USGBC’s Green Building Rating System or other green or sustainable design elements.”

Long story short: his firm interprets this clause to mean that the landlord is blocked from employing any O&M practices, which would help the building to perform to the level expected from it’s LEED certification. To them, the language allows the tenant to object to any measures employed by the landlord that can potentially affect their costs in any way, no matter if those measures even benefit them down the road.

The building is LEED-NC certified and now the property buyer is faced with the reality that — if they wanted to get a LEED-EBOM certification or even just an Energy Star qualification — which, in their view, helps preserve value over the holding period, absolutely every tenant in the building is explicitly not obligated to cooperate with any measures the Landlord would introduce to achieve those certifications.

Moreover, they also worry that investing in the asset marketed as LEED-certified, with the full knowledge that achieving environmental performance is effectively impossible, leaves them open to being thought of as greenwashers.

As a result, our colleague and now his superiors have adopted the opinion that the LEED certification on this building is essentially worthless. Moreover, they don’t see any way to proceed with the acquisition because they will have to wait nearly ten years until the anchor tenant’s lease expires in order to change this clause, which prevents them from working with every single tenant in the building on this matter.

The investment is fundamentally flawed, doomed to a lifetime of discounted rents and sales prices any time other tenants and future buyers figure this out — or until that lease clause is changed. It could be completely non-competitive on energy performance within its submarket by then as all the other landlords will have been able to easily write leases which assure the landlord the ability to institute O&M expected of green buildings, making this asset the market laggard and — relatively devalued at disposition.

Ironically, any appraiser would typically ignore this in their valuation of the project since absolutely none of these issues would hit their traditional underwriting radar. They would have to be sensitized to the connections between sustainable design, O&M, building performance and related contractual lease obligations to figure out the true negative impact of this clause.

So the seller, after spending so much time marketing the building as a high quality, LEED-certified asset now must move on and find a buyer, who is not as sensitized to the de facto devaluation of the building, and willing to pay his sales price.

Kudos to this investment analyst and his firm for doing the right thing, both financially and environmentally. Green buildings made brown by bad lease language shouldn’t be rewarded with top dollar purchase prices.

In the meantime, please take this as a cautionary story about actual underwriting issues that can come up with green building investments in today’s market.

Don’t Build a Certified Gas Guzzler

Some investors narrowly focus on obtaining the LEED-plaque without doing sufficient analysis of whether they are approving the right kinds of energy-savings features for their investment dollars.

And that can cost them more than they assume — here’s a real cautionary tale:

The GSA’s Federal Building in Youngstown, Ohio is highlighted in today’s NY Times as a LEED-certified gas guzzler. The barebones fact is that, despite achieving LEED-certification, the building failed to qualify for Energy Star rating, when its utility bills were assessed last year.

What did they do wrong?

The GSA focused on things like daylighting, native landscaping and a white roof. They also paid for a “gas guzzling cooling system” and didn’t funding enough “structural energy-saving features”.

What’s at stake for the real estate industry is the enormous investment of time and capital into creating green and energy efficient buildings, in order to avoid the potential appraisal risk tied to obsolescence now facing many conventional buildings.

The USGBC’s own research indicates that “a quarter of the new buildings that have been certified do not save as much energy as their designs predicted and that most do not track energy consumption once in use.”

In addition to possibly leaving an owner open to reputation damage from accusations of greenwashing, failing to make the right decisions about structural energy and water saving design could harm the viability of the green building investment in a few ways:

a) Wasted money: in our opinion, an investor operating an underperforming certified green building is still open to the appraisal risk that they were trying to avoid in the first place,

b) Breach of duty to your shareholders: in the opinion of some attorneys, the investor is breaching his fiduciary responsibility to his shareholders for not taking sufficient steps to avert material risks to their investment.

b) An entre to litigation hell: in the opinion of some other attorneys, the green building’s subperformance can possibly leave the A/E/C partners possibly open to litigation related to the subperformance issues.

And on top of all of that, absolutely no one wants to be the operator who has to come up with a clever response for his investors because his firm is featured in the press as the owner/operator of a gas-guzzling green building. The damage from that sort of press is enough to outweigh any concerns about potential first cost fears on structural energy-saving features.

So if one of your partners or clients doesn’t see much value in paying for structural energy-savings features, hand them the story of Youngstown Ohio Federal Building.

Ask them if they’d like to see their name in the papers as the next owner of a LEED-certified asset that has been officially assessed as a gas-guzzler.

Yudelson: ‘You should be tougher’ on non-LEED West Village

Your input is requested on a very important matter!

Yesterday, I highlighted the UC Davis West Village student/faculty housing development getting a $2 million grant from the California Energy Commission.

I also noted the project not adhering to LEED guidelines or any other third-party rating standard for that matter.

That definitely caught the attention of none other than Jerry Yudelson — a Green Journey reader with regular comments — who took me to task on not going deeper on the lack of third-party rating standard for the project.

His point:

Like this story, but you have to be tougher in your commentary. Not only is LEED not mentioned, thus no third-party accountability, but CEC did not require it as a condition of the grant, going against a clear requirement for all new state buildings. Also, there are no clear sustainability objectives: e.g., housing to use no more than 5 kWh/sq.ft./year for heating, cooling, hot water and lighting, no more than 50 gals/capita/day water, 100% use of certified wood, no use of PVC, etc. Without these touchstones/benchmarks, the so-called “sustainable design” is not ground-breaking at all, just a grab bag of technologies and design approaches.

I gotta admit: Jerry’s making a big point. It is true that not even the most minimum standard for energy and water saving guidelines were agreed for the project, despite it being a deal controlled and co-sponsored by the University of California (sponsorship from ground lessor relationship). Adding to that, the project received funding from the California Energy Commission, a big proponent of green building in general.

Here at Galley Eco Capital, we’re aware of several large developments in California that have gone through an extensive environmental review and entitlement process taking many years. The sustainability requirements that they were required to adhere to were baked into the deal years ago, somewhere during the process.

Should the developer feel compelled to achieve LEED-certification anyway?  I know that we USGBC supporters would want them to do so.

They finally achieve entitlements now, years later, during a new era that expects more vigorous, sustainable land use, transportation, environmental and building policy. I am not 100% sure about whether this is the case for West Village, but it fits the fact pattern.

Other developments, such as the Catellus Mission Bay project here in San Francisco, encountered a similar situation with their entitlements. In Mission Bay’s case, the master developer did not have to require LEED-certification from vertical developers, but some — Alexandria and McCarthy Cook, for example — built buildings to LEED-Silver, anyway.

In their case, these vertical developers needed LEED-certification from a marketability standpoint, to remain competitive with UC San Francisco or the large biotech and pharma companies on the prowl for new space. The West Village developers are marketing the units at below market prices, so assuming the pent up demand remains strong, they will not face any marketing risk associated with the fact that their product is essentially “self-certified”. Here the real estate story could trump the broader trend towards going green.

Your turn: What do you think?

• Should we be harder on the West Villages of the world, who are getting grant funding for “research” even as they avoid adhering to the most minimal third-party certification?
• Are we not hard enough?
• Are their efforts really just a ‘grab bag of technologies and design practices like Jerry says?

Please send me (and Jerry) your point of view. I will compile all the messages and share with those who respond.

We like this kind of issue here on Our Green Journey, because we want an authentic discussion first amongst finance and investment professionals — no fluff. That’s the only way that we are all going to create better, more sustainable results for our communities.

So tell it like you really see it. Your input would be very much appreciated.

Banks, Climate Change & Green Real Estate: Money Talks

Mindy Lubber, head of Ceres, talks about how the big US banks are taking responsibility to reduce the negative effects of climate change. You’ll notice that she mentions the banks being signatories to the Carbon Principles and changing the way they go about financing coal-fired power plants.

This is good to keep in mind because people often get confused about why some of the big banks advertise their corporate social responsibility, as if its a global policy applicable to all lines of business, but still have no committed capital, specific products or policies earmarked for green commercial real estate.

No, I’m not saying that they are greenwashing. Certainly tightening due diligence and financing guidelines for coal-fired power plants is a good thing.

The Green Journey take on it is caveat emptor**, but in a proactive, not a lazy or disaffected, sense.

Keep in mind that any company — not just banks — advertising their social responsibility can (and often do) “choose locally” and “talk about it globally”. Yes, they can pick out a few business areas to be more green, ignore the others, claim to be totally socially responsible, and then use that to enlarge their corporate reputations, win awards, and make more money. All of which keeps watchdogs like Ceres in business in the first place.

How to navigate this space? Its up to all of us to give credit where credit is due, and at the same time ask more pointed questions about their business policies regarding sustainable real estate and then vote with our wallets.

Notes:
** Means ‘you’re on your own, dog’. Thousands of years ago in Latin, it meant ‘let the buyer beware’.