Berish v. Bornstein, 71 Mass. App. Ct. 1101 (2007) (Unpublished)
In this unpublished decision, the Massachusetts Appeals Court addressed the implied warranty of habitability as applied to construction of a residential condominium development. Plaintiffs, who were trustees of a condominium association, appealed from the trial court’s ruling that faulty window installation in the units was not a latent defect and that faulty chimney attachments were not a safety threat to condominium unit inhabitants. Plaintiffs also challenged the judge’s findings that certain other claims were time-barred. The defendants (the condominium developer, an original trustee of the condominium trust, and the general contractor) cross-appealed from the judge’s ruling on the timeliness of plaintiffs’ claims for breach of the implied warranty of habitability and for negligence.
Addressing the merits of the appeal, the court noted that in order to establish a claim for breach of implied warranty of habitability, an organization of unit owners must prove that the common area of the condominium contained a latent defect that manifested itself after the construction of the common area was substantially complete, was caused by a builder’s improper design or workmanship, and created a substantial question of safety as to one or more units or made such units unfit for human habitation. In applying this standard, the court overturned the trial court and held that the lack of flashing on a window amounted to a latent defect because it was not discoverable by reasonable or customary inspection. Next, the appeals court overturned the trial court and found that the inadequate chimneys in the condominium common areas also implicated the habitability of the condominiums sufficiently to support plaintiff on the grounds that the faulty chimneys created a substantial issue of safety.
The court, however, upheld the trial court’s ruling that plaintiffs’ claims based on defendants’ failure to apply a weather resistant wrap on the building exterior, and faulty chimney flashing, were barred because plaintiffs learned of these defects and failed to act within the applicable three-year statute of limitations time period. Last, the court denied defendants’ cross-appeal by which defendants argued that the discovery rule should not apply to breach of implied warranty claims.