In a recent decision, the Massachusetts Supreme Judicial Court held that the Massachusetts six-year statute of repose (G.L. c. 260, § 2B) is not tolled until the entire multi-unit condominium development is finished. The plaintiffs had brought a claim for construction defects in the common areas of the development. The SJC answered a certified question posed by the Massachusetts federal court concerning the applicability of the statute of repose in a situation where the construction was completed over various phases of the development. The statute of repose bars tort actions commenced more than six years following the earlier of “(1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.”
The SJC held that each condominium building constituted a discrete “improvement,” such that the opening of an individual building or substantial completion of an individual building triggered the statute of repose.
In D’Allessandro v. Lennar Hingham Holdings, LLC, SJC-12891 (Nov. 3, 2020), the Hewitts Landing Condominium located in Hingham, MA consisted of 150 units, contained in twenty-eight buildings, built over the course of twenty-four “phases” between 2008 and 2015. As construction progressed, the project’s architect submitted affidavits to the Town of Hingham attesting that individual units or buildings were “substantially complete” and ready for occupancy. In 2017, the plaintiffs, trustees of the Hewitts Landing Condominium Trust, brought suit for, among other things, design and construction defects to the condominium common and limited common condominium areas. The defendants encompassed multiple parties including the condominium developer, contractor, and the construction manager.
After removing the case to federal court, the defendants sought partial summary judgment on the basis that the statute of repose barred plaintiffs’ claims with respect to six of the twenty-eight buildings. The Court adopted the plaintiffs’ position and denied the defendants’ motion, holding that all twenty-eight buildings constituted a single “improvement” for purposes of the statute of repose. Upon the defendants’ request, the federal court judge certified the issue to the SJC.
The SJC focused on the term “improvement,” as it is not defined under the statute of repose, as well as the statute’s legislative intent. The Court noted that “the Legislature’s primary objective in enacting [the statute of repose] was to limit the liability of architects, engineers, contractors, and others involved in the design, planning, construction or general administration of an improvement to real property … .” The Court further noted that, over the passage of time, architectural drawings may be discarded, building codes may change or persons involved in the construction project may be deceased on unable to be located. Accordingly, the statute of repose, while seemingly punitive to prospective plaintiffs, serves a legitimate public purpose.
The Court ultimately concluded that the plaintiffs’ position would contravene legislative intent in that defendants would be exposed to liability with respect to discrete condominium improvements that indisputably opened for occupancy more than six (6) years before the commencement of the action. The Court recognized that its holding may present difficulty for some plaintiffs, especially where the developer retained control over the association of unit owners. The Court found, however, that it is for the Legislature, not the Court, to formulate a proper remedy.