The Owner's Role

• Author: Carol J. Patterson - Ross J. Altman - Stephen A. Hess - Allen Overcash
• Pages: 35-61

CHAPTER

35

3

The Owner’s Role

LORENCE H. SLUTZKY AND DENNIS J. POWERS

3.01 overvIew

To initiate a project, the owner’s program or building requirements must

be dened, a design professional engaged, and a construction delivery sys-

tem selected based on rough estimates of construction costs. Once the owner

denes the structure’s building requirements, appropriate sites are inves-

tigated. Site selection must be based on considerations of regulatory restric-

tions imposed by title, zoning, environmental, and other regulatory restrictions

imposed by governmental authorities with jurisdiction as well as political real-

ities. Relevant information is provided to the design professional. Construction

documents are prepared. Financing of the project is secured. A contractor is

either selected or awarded a construction contract. Building permits, as well as

ingress and egress permits are secured. Construction easements and licenses

may also be required. The selected contractor commences construction in

coordination with the governmental authorities with jurisdiction. Timing of

construction in the northern latitudes must be considered in light of the real-

ities of the potential for harsh winters, and in the southern latitudes based

upon hurricane season.

pat54645_01_b01_001-282.indd 35 6/28/19 2:04 PM

CONSTruCTiON LAW

36

3.02 provIdIng the buIldIng sIte

Selection and procurement of a building site requires more than just an evalu-

ation of the location for the structure’s ultimate use. Indeed, before a decision

to purchase the site, a comprehensive analysis of a multitude of factors that

may impact design, construction, and ultimate use must be performed. Upon

acquisition, the owner typically has a contractual duty to provide the design

professional with the legal details pertaining to the property. 1

Acquisition of a building site requires assessment of many factors, for

example, zoning, covenants that follow title restricting what can be built, the

existence of easements under or over the property that may impair design or

use, and soil bearing capacity and environmental issues that must be consid-

ered for their impact on design and construction costs. Similarly, access, loca-

tion, and sufciency of utilities must be considered. The zoning, demolition,

and the construction permit process are potentially politically charged issues

that may be negatively impacted by social conicts. These conicts may arise

during the acquisition, design, zoning, permitting, staging, construction, or

during the ultimate use of the project.

The decision to acquire the building site property includes all of the pre-

ceding factors and more. Failure to anticipate these needs is likely to result

in delay, additional cost, and possible rejection of the project. Each of these

factors must be evaluated as a part of the design and construction equation in

making the decision to acquire the proposed building site. Failure to heed these

considerations may constitute trespass, resulting in recoverable damage to the

property, injunctive relief precluding access to the site, delay and delay dam-

ages and related costs, or an inability to commence or complete the project.

A. Access to the Construction Site and Necessary Adjacencies

Prior to the owner issuing a notice to proceed, preferably before the project is

bid, access to the construction site as well as necessary easements or licenses

to adjacent properties must be secured. Consideration of continuous lateral

and subjacent support to adjoining lands must be considered.2 For example,

1. It is the owner’s contractual obligation to provide the design professional with a survey of

the physical characteristics of the site, legal limitations, a legal description, rights-of-way restric-

tions, easements, encroachments, deed restrictions, and other critical data. See, e.g., American

Institute of Architects, AIA Document B101–2017, Standard Form of Agreement between Owner

and Architect § 5.4 (2017) [hereinafter AIA Document B101–2017] and American Institute of

Architects, AIA Document B103–2017, Standard Form of Agreement between Owner and Archi-

tect for a Large or Complex Project §5.5 (2017) [hereinafter AIA Document B103–2017].

2. Adjacent Landowner Excavation Protection Act, 765

ill. cOMP. stat.

140 et seq.

pat54645_01_b01_001-282.indd 36 6/28/19 2:04 PM