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Massachusetts Statute of Repose Applies One Building At a Time

12/22/20

By: David Slocum

The Massachusetts Supreme Judicial Court (the “SJC”) recently issued an important decision addressing the previously unanswered question of when the Massachusetts 6-year statute of repose for defective design, planning, or construction is triggered for purposes of alleged defects in the common areas of a multi-building, multi-phase condominium construction project.

In D’Allessandro v. Lennar Hingham Holdings, LLC, 156 N.E.3d 197 (Mass. 2020), the Massachusetts high court held that irrespective of how many phases of development there are or how many buildings are within each phase, where a condominium project is comprised of multiple buildings, each individual building constitutes a discrete improvement for purposes of Massachusetts’ six-year statute of repose. In D’Allessandro, the Hewitts Landing Condominium project located in Hingham, Massachusetts (the “Project”) was comprised of 150 condominium units spread across twenty-eight separate buildings. The Project was built over the course of nearly two-dozen separate phases between 2008 and 2015. During the course of construction, the architect submitted affidavits of substantial completion and the town issued certificates of occupancy for the individual units and separate buildings as they were completed.

In 2017, the Condominium’s trustees filed a complaint seeking damages from the developer and others for alleged defects to the common areas of the Project. Because six of the twenty-eight buildings had been completed more than six years before the complaint was filed, the defendants argued the claims as to those buildings were barred by the statute of repose, which provides no tort action “arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property” may be brought more than six years after “(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,” whichever date occurs earlier. Mass. Gen. Laws ch.260 § 2B.

The question before the Court was whether the statute of repose was triggered only upon the substantial completion of the entire condominium project, or whether instead the statute was triggered multiple times as each individual building was open to use or substantially completed. In answering that question, the Court wrote: “[w]here a condominium development is comprised of multiple buildings, regardless of how many phases of the development there may be or how many buildings are within each phase, each building constitutes a discrete ‘improvement’ for purposes of [Mass. Gen. Laws ch. 260] § 2B, such that the opening of each individual building to its intended use, or the substantial completion of the individual building and the taking of possession of occupancy by the owner or owners, triggers the statute of repose.” D’Allessandro v. Lennar Hingham Holdings, LLC, 156 N.E.3d. at 203-04.

Under the holding in D’Allessandro, the substantial completion of each individual building and the taking of possession of that building for occupancy by the owner triggers the statute of repose as to the common areas of that individual building. Thus, in the context of a complex condominium project with multiple buildings and phases, the protection afforded to design professionals, developers, contractors and the like by the Massachusetts statute of repose does not have to wait until six years after substantial completion of the entire project. Rather, the statue will be held to apply one building at a time.

If you have questions or would like more information, please contact David Slocum at [email protected].