MIAMI—Could a tenant be required to sign a green lease? What happens if they breach it? What about landlords? What is their obligation?

Green leases, also known as energy-efficient leases, high-performance leases, or aligned leases, work to match the landlord and tenant's financial and energy incentives. The goal is to conserve energy and reduce costs for both parties.

With green leases gaining momentum, landlords and tenants need an education. GlobeSt.com caught up with Brandon Robinson, an energy attorney with Balch & Bingham, to get answers to some questions both sides of the table are asking.

GlobeSt.com: Is a tenant required to agree to the green lease? What if the tenant breaks the green lease?

Robinson: Absent legislation that hardwires “green” requirements into the state landlord-tenant code, then a tenant is only required to do what is contained in the lease that he or she signs. Even then the tenant is not required to do so if it is willing to face the consequences of breaking the lease.

If a tenant terminates an existing lease because of an inability to successfully negotiate “green amendments,” then whatever expiration or termination provisions are contained in the contract would apply. If a tenant fails to successfully negotiate a new green lease, then the deal may simply fall apart and the two parties walk away.

If the tenant “breaks” the green lease by failing achieve green certification, then it depends on how the lease agreement treats such failure. Is it a standard default like any other, or are there specific remedies that apply to a “green breach?” Is there a notice and cure period? This all depends on the negotiated contractual provisions.

GlobeSt.com: Can landlords ever be required to green lease? 

Robinson: Again, absent specific legislation to that effect in the particular state's landlord-tenant code, it is unlikely that a landlord would be required by law to enter into a green lease. Other outside factors may come into play, such as market forces, homeowner's restrictions, et cetera.

It should also be noted that some cities are now beginning to mandate LEED certification on a prospective basis. For example, in 2004, San Francisco passed an ordinance requiring municipal projects—new, existing, or tenant improvements—greater than 5,000 square feet to earn LEED Silver certification. That increased to LEED Gold in 2012. To engage the private sector, the San Francisco Planning Department in 2006 initiated priority permitting for new and renovated buildings that achieve LEED Gold or higher.

In 2008, Los Angeles passed an aggressive ordinance that requires all new projects greater than 50 units or 50,000 square feet to be LEED certified. This is part of the Green LA Plan, unveiled in May 2007, which calls for the city to reduce its carbon footprint by 35 percent below 1990 levels by 2030.

The goal goes beyond the targets set in the Kyoto Protocol and is the greatest reduction target of any large U.S. city. In exchange, the city will work with builders to speed up approvals and to remove obstacles in the municipal code for elements of sustainable building design, such as green rooftops, cisterns and permeable pavement.

The federal government also has green objectives and programs related to its buildings. In December 2007, Congress authorized the creation of the Office of Federal High-Performance Green Buildings in order to “enable and enhance Federal leadership in the field of sustainable real property portfolio management and operations.”

However, even in jurisdictions where certain buildings are mandated to be LEED certified, landlords and tenants still have choices. A landlord who expects to keep his property in the longer term may simply invest in certain upgrades directly rather than sharing the risks and benefits through a green lease, because he expects operational cost savings over the lifecycle of the building, or he may decide to purchase a building in another jurisdiction where LEED certification is not mandated. Similarly, tenants could choose to rent somewhere else rather than enter into a green lease.

So, considering this here's another question: Should you sign a green lease?