Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)

Citation: Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)
Parent Document: Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)
Jurisdiction: Massachusetts (state)
Effective Date: 2006-05-22
Original Source: https://www.courtlistener.com/opinion/8356288/berish-v-bornstein/ ↗

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The Trustees contend that the defendants’ failure to flash or caulk any of the windows breached the warranty of habitability. “Keeping out rain and cold is the most fundamental function of housing ...” Kingston Housing Auth. v. Sandonato & Bogue, Inc., 31 Mass.App.Ct. 270, 271 (1991). A home that fails to keep out the elements because of defects in construction breaches the implied warranty of habitability. Albrecht v. Clifford, 436 Mass. at 711. Nonetheless, this Court concludes that the lack of flashing was not a latent defect because Kaplan was able to observe, without destructive testing, that there was no flashing on the windows. A latent defect is a condition which is hidden or concealed and not discoverable by reasonable and customary observation or inspection once construction is complete. Id. at 710,713. In discussing the rationale for the warranty of habitability, the Supreme Judicial Court expressed concern with defects which are “nearly impossible to ascertain by inspection after the home is built.” See id. at 710.

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