In D’Allessandro v. Lennar
Hingham Holdings, LLC, 2020 WL 6438937 (Mass. Nov. 3, 2020), the Massachusetts
Supreme Judicial Court held the statute of repose governing the claims for
design and construction defects for a multi-building condominium project began
to run when each building was opened for its intended use or was substantially
completed, not when the first building was complete. The condominium in question consisted of twenty-eight (28) buildings
built in twenty-four (24) phases between 2008 and 2015. Each building was issued
a Certificate of Occupancy when the architect determined the building or units
were “substantially complete.”
In 2017, the owner filed suit against the developer, contractor,
construction manager, and condominium declarant alleging design and construction
defects. Defendants argued the six-year statute of repose barred claims for six
of the buildings that were completed more than six years prior. The Superior Court
denied the motion and ruled the condominium’s twenty-eight buildings were
considered one single improvement for purposes of the statute. The case was removed
to The United States District Court, District of Massachusetts, which certified
the question for the higher court.
The Massachusetts Supreme Judicial Court heard the certified question of whether a project consisting of
multiple buildings or phases triggers the statute of repose upon completion of
the entire project or the individual buildings that make up the project. Leaning
on Massachusetts Statute 360, § 2B, which states the six-year statute of repose
begins to run on the earlier of “(1) the opening of the improvement or (2)
substantial completion of the improvement and the taking of possession for
occupancy by the owners,” Plaintiffs argued the improvement was the entire
condominium development, because it was built during a continuous construction process.
The Court disagreed and ruled that in analyzing the statutory language and
underlying legislative intent of § 2B, each building constituted an “improvement,”
such that the statute began to run when each building opened for its “intended use”
or was substantially completed.
The Court went on to emphasize that the Legislative objective in enacting
§ 2B was to limit the liability of architects, engineers, and builders in
situations where projects had been completed and persons involved in the design
or construction were expected to maintain records for an unreasonable amount of
time. The Court noted that the six-year limitation was a way to balance the
public’s right to a remedy with the need to place a limit on tort liability for
parties involved in construction.
This case continues the trend of courts upholding strict statute of repose and statute of limitations deadlines, specifically in the construction and design context. This holding has broad implications for owners’ claims, and will require owners to file suit for portions of the project, even while other portions are being constructed.
