Statute of Repose on Multi-Building Project Applies to Each Building When Completed

The Massachusetts Supreme Judicial Court has held that the statute of repose on a multi-building, multi-phase project commences on a building by building basis. Thus, a condominium association filing suit after completion of 28 buildings has been told that its claims for the first six buildings are barred.

A federal district court held that all 28 buildings were to be “treated as a single ‘improvement’ for purposes of [the statute of repose].” We previously discussed that decision and a similar case in Minnesota. After the Massachusetts federal court ruling, a question on this issue was certified to the Massachusetts high court, which came to the opposite conclusion.

The SJC noted that the statute of repose does not define “improvement,” and the parties had argued differing interpretations of that word in context. The court focused on the independent factors in its analysis: “(1) whether the improvement is open to use; or (2) whether the improvement is substantially complete and the owner has taken possession for occupancy.”

Per the court, the condominium association’s interpretation (that the statute had to apply to the entire complex) “would stray too far from the statutory language and the legislative intent behind it.” Thus, in the setting of a multi-building or multi-phase complex, “the statute of repose for each component begins to run when that discrete improvement is substantially complete and open to its intended use.”

The court hearkened back to the original intent of the statute of repose, which was to provide a final stop for liability of architects, contractors and others for the planning, design and construction of improvements. Adopting the condominium plaintiffs’ position “would contravene legislative intent by exposing the defendants in this action to liability with respect to discrete improvements . . . that were indisputably open to use more than six years before the commencement of this action.”

Finally, the SJC noted that the concerns of condominium associations in this setting, that rights to recover could be lost before a complex has been completed, are best left to the legislature. The case is D’Allessandro v. Lennar Hingham Holdings, LLC, ___ Mass. ___ (Nov. 3, 2020).