by Alexander Tsianatelis, Esq.

 

Many states and jurisdictions, including Massachusetts, have been prompted to re-examine their construction and design liability related laws in the wake of the Champlain Towers South high-rise condominium collapse in Surfside, Florida. One such law is under particular scrutiny in Massachusetts. In Massachusetts, Massachusetts General Laws, Chapter 260, §2B (the “Statute of Repose”) generally prevents the enforceability of 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” after a period of six years from “the earlier of the dates of: (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.” Generally, this means plaintiffs are prevented from enforcing tort claims against designers, planners and contractors who originally constructed improvements in Massachusetts after the six-year period has run.

 

The origin for the existence of the Statute of Repose is that it makes sense that designers, planners and contractors should, at some point, have some certainty as to the expiration date for the filing of any potential claims against them with respect to projects they have worked on. Although understanding the logic of the Statute of Repose in light of the Champlain Towers South condominium tragedy is difficult, if not troublesome, if we step away from whether the six-year period is too short or too long, it is sensible that at some point an owner would be fully responsible for maintaining and repairing their building, and that given such obligation to maintain and repair, it would be reasonable to require an owner to notify a designer, planner or contractor of any major design or construction defects within a reasonable period of time.

 

Some lawmakers have argued the Statute of Repose should be revised to substantially increase the period an owner is permitted to bring a successful claim against a designer, planner or contractor. Other lawmakers have gone in the opposite direction, proposing legislation intended to add additional obligations to condominium owners to ensure condominiums receive regular and prompt inspections and which promote condominium associations to make needed repairs. For example, Bill H. 1387 is intended to revise a condominium association’s requirement to maintain an “adequate replacement reserve fund” in accordance with Massachusetts General Laws Chapter 183A, §10. This revision would require condominium associations to engage certified engineering firms to study a reserve fund and then create funding plans to meet a condominium association’s maintenance needs. These studies and plans would be an additional expense for owners of the condominiums.

 

Complicating matters is that, in practice, condominium unit owners often have varying degrees of intention to remain at a property. As such, some owners may be more or less inclined to approve taking on the cost of either initiating and proceeding with long-term litigation on the one hand, and more immediate costly maintenance, repairs and replacements on the other. As an example, certain national publications have reported that, despite the severity of the alleged structural defects at Champlain Towers South reported in a 2018 engineer’s report, the trustees were not able to convince the required unit owner majority of the association to underwrite and pay for the multi-million-dollar repairs. Meeting these unit owner majorities is especially difficult in larger developments where unit owner voter turnout may be especially low. Whether it is increasing the obligations and liabilities of engineers, planners and contractors or those of a condominium association, it makes sense to take this opportunity to look at condominium association related laws that affect condominium associated litigation, maintenance and repairs.