Condo Media - December 2020 - 35

SUPREME COURT RESPONSE
The Supreme Court addressed that
concern with three responses.
l FIRST, in footnote 16 of its decision, the Court pointed out that a
unit-owner-elected board could
always assert a breach of fiduciary
duty claim against developer-appointed trustees who allow statutes
of repose to lapse during the period
of declarant control. The Court also
pointed out that such a claim was
asserted in this case.
l SECOND, and also in a footnote,
the Court indicated that unit owners
could get together and assert derivative claims against a developer prior
to the running of the statute of repose.
While that may be true, the practicality of unit owners asserting derivative
claims for construction defects at a
developer-controlled condominium is
a difficult proposition.
l The THIRD response was that
the conflict posed by the statute
of repose and extended developer
control in phased projects is best
remedied by the legislature. 
The CAI Massachusetts Legislative Action Committee (MALAC)
has been working on that issue as
well. Specifically, the MALAC has
proposed legislation that would
address this very issue in Massachusetts. The MALAC bill has passed
the Massachusetts House of Representatives and is awaiting passage
in the Senate. Matt Gaines, co-chair
of the MALAC and also with the
firm of Marcus, Errico, Emmer
& Brooks, is working tirelessly to
move this legislation through and
the Court's decision will be used as
a basis for legislative action on this
particular issue.
 
TAKEAWAYS FROM THE
COURT'S DECISION
So, what are the takeaways from
the Court's decision?
l FIRST. Be aware of the outside
six-year limit to bring claims for
construction defects.

The Massachusetts Supreme Judicial
Court in D'Allessandro v. Lennar Hingham
Holdings, LLC ruled that in a phased
condominium, the six-year statute of repose
begins to run upon substantial completion of
each building improvement.
lS
 ECOND. Understand that in a
phased condominium that six-year
rule is going to run building to
building, not at completion of the
entire development.
lT
 HIRD. Consult an experienced
condominium lawyer and litigator
to understand and advise on construction defect claims.
There are other deadlines, like
a three-year statute of limitations
that works in tandem with the sixyear statute of repose and relates
to awareness of the condition/
defect, whereas the statute of repose
relates to an absolute date of substantial completion. The Court also
pointed to other possible alternatives or workarounds like derivative
lawsuits and breach of fiduciary
duty claims.

The law in this area is complex
and defects can run millions of
dollars - and, after all, these are
residents' homes. It is clear just
from this one case and the various
parties that were interested in it and
filed amicus (friend of the court)
briefs that the parties realize there
is a lot at stake both in terms of legal
certainty and dollars in terms of
construction defects. The more condominium owners and trustees know
and understand about the process,
the better they will be able to advocate
for themselves and their homes when
problems arise.
n EDMUND A. ALLCOCK, ESQ., CCAL,
IS A PARTNER WITH THE LAW FIRM
OF MARCUS, ERRICO, EMMER &
BROOKS, P.C. AND 2020 CAI-NE
CHAPTER PRESIDENT.

December 2020 CONDOMEDIA

35
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