This issue presented in this case concerns when the Statute of Repose begins to run in a multi-phase condominium. The United States District Court for the District of Massachusetts has certified the following question to the Massachusetts Supreme Judicial Court:
“Where the factual record supports the conclusion that a building or developer was engaged in the continuous construction of a single condominium development comprising multiple buildings or phases, when does the six-year period for an action of tort relating to the construction of the condominium's common or limited common elements start running?"
The issue presented is of importance in the Commonwealth of Massachusetts and could potentially impact how other states interpret the date in which the Statute of Repose (Mass. Gen. Laws ch. 260, § 2B) begins to run in multiphase condominiums. The Massachusetts statute of repose provides that any action of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property … [shall not] be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion and the taking of possession for occupancy by the owner. The United States District Court held that a multiphase condominium continuously developed is not a series of improvements but one single improvement and as a result, the repose period starts running upon the completion of the entire improvement, as completion is defined in the statute.
This decision is beneficial for condominium associations as it provides them additional time to discover defects which may be latent and allows them to avoid the need to file multiple lawsuits arising out of the construction and development of multiple phases of one condominium, (i.e. six years after the completion of each phase). It also allows a condominium to capture or include in a construction defect suit earlier phases that may otherwise have been time barred, as sometimes the association will not discover the defects until more than 6 years after the completion of earlier phases. It also alleviates concerns about a board having to rush to file suit to beat the statute where the developer holds onto control of the association for years after the completion of certain but not all phases.
If this decision is reversed it would result in condominium associations being forced to file multiple suits on a phase by phase basis concerning identical construction defects. More importantly it would also be the first published decision of its kind in Massachusetts recognizing that the statute of repose on a phased project runs upon final completion of the entire project.
This decision if affirmed by the Massachusetts Supreme Judicial Court could also have bearing on how other courts and jurisdictions across the country interpret the running of statutes of repose in multi phased projects where there are latent construction defects.
Court: Massachusetts Supreme Judicial Court, Court Opinion
Topic: Statute of Repose
Brief Author: Edmund A. Allcock of Marcus, Errico, Emmer & Brooks, P.C. and Thomas O. Moriarty of Moriarty, Troyer & Malloy.
CAI Amicus Review Panel: Mr. Robert Diamond, Esq. (VA), Mr. Stephen Marcus Esq. (MA), Mr. Jeffrey Beaumont, Esq. (CA), Ms. Gabriella Comstock, Esq. (IL), and Ms. Sara Ross, Esq. (VA)Court Opinion