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Massachusetts Supreme Judicial Court Clarifies When Statute of Limitations Clock Begins Running in Multi-phase, Multi-building Real Estate Development Projects

Last year, I wrote about the case of D’Allessandro v. Lennar Hingham Holdings, LLC, where United States District Court for the District of Massachusetts held that the statute of limitations under G.L. c 260 § 2B did not begin running until the entire multi-phase, multi-building condominium project at issue in the case was completed. Following the District Court’s ruling, however, Defendants in the case petitioned for the District Court to certify the question to the Massachusetts Supreme Judicial Court. This means that the District Court, a federal court, posed a question regarding the interpretation of state law to the highest court in the state, the Supreme Judicial Court (“SJC”).

The certified question from the District Court to the SJC was: “Where the factual record supports the conclusion that a builder 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?”

Unlike the District Court the SJC did not find that the statute of limitations started running when the entire project was complete. Instead, the SJC held that “the issuance of a certificate (or certificates) of occupancy for each individual building (or for all the units in a building) triggered the statute of repose for the common elements and limited common elements pertaining to that building.” The SJC went on to hold “that where a particular improvement is integral to and intended to serve multiple buildings within a single phase, or buildings across multiple phases, or even the condominium development as a whole, the statute of repose begins to run when that discrete improvement is substantially complete and open to its intended use.” Thus, the statute of limitations for a multi-phase, multi-building condominium project does not begin to run when the entire project is complete, but it starts to run potentially earlier, when the certificates of occupancy are issued for the building whose defects are at issue in the given case. Additionally, if a common area is meant to serve buildings in different phases, such as a gym or grill area in a condominium complex, the statute of limitations for claims under G.L.c. 260 § 2B begins to run when that area is open for its intended use.

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