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Berding & Weil Settles Benchmark Heat Gain Case for Nearly $10 Million

Press Release

June 16, 2021

Berding & Weil obtains huge recovery for units that were “too hot”, securing a construction defect recovery of nearly $10 million for a high-rise condominium association located in San Francisco.

The firm represented a condominium development in a vigorously contested suit against the developer and others responsible for the design and construction of the project. The heat gain claim asserted that deficiencies in the design and orientation of the building which featured a glass curtain wall system, failed to include sufficient ventilation, which led to unhealthy temperatures within the condominiums. A glass curtain wall is a building envelope constructed entirely of glass. It is often used by developers as a design element to reduce energy costs without reducing natural light.

“The building's condo owners discovered that the west and south-facing units often became uncomfortably warm, as the sunlight struck their glass walls,” said Steve Weil, one of the founding partners at Berding & Weil, commenting on the case handled by partners Dan Rottinghaus and Scott Mackey. “We found that the condominium's inadequate ventilation failed to purge the heat from the units. We further demonstrated that on sunny days when the outdoor temperature was mild the units could get as hot as 90 degrees without the ability to cool off, making the interior environment of the units unbearable.”

Facing the absence of an air conditioning system, the lack of proper ventilation and an exorbitant cost to install both systems, the association turned to Berding & Weil for guidance.

“California Building Code section 1204.1 requires that interior spaces intended for human occupancy shall be provided with active or passive space heating, ventilation, and air conditioning (HVAC) systems capable of maintaining an indoor temperature of not less than 68 degrees,” Weil said. “Additionally, the code requires buildings be provided with natural or mechanical ventilation.”

What the building code does not provide are any specific requirements regarding the maximum allowable temperature inside of an interior space, nor does it provide any objective definition for what constitutes “habitable” in terms of maximum temperature or ventilation of an interior space. The defense used this omission to argue that the heat gain problem was not a “defect” compensable by law.

“Per Section 1207.12. the code also states that if interior allowable noise levels are met by requiring that windows be unopenable or closed, the design for the structure must also specify a ventilation or air-conditioning system to provide a habitable interior environment,” Weil added.

Given the absence of a clear violation of California Building Code section 1204.1, Berding & Weil advanced an aggressive and successful plan to demonstrate that inadequate ventilation, and the long-term exposure to excessive heat, caused an uninhabitable interior environment within the units. Under Civil Code section 897, Berding & Weil proved that this design defect constituted “damage” as defined by Civil Code section 3281 (loss or detriment) instead of property damage. With this extraordinary recovery, the association now has the financial freedom to decide on the best possible fix to allow the residents the full enjoyment of their homes.

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