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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Here, Kaplan, an ordinary purchaser with no construction expertise, felt a lot of air penetration through his windows and observed that he could probe from the window frames right through to the interior of the wall because there was no flashing. He did not have to remove any shingles from the exterior of the unit or perform any other destructive testing to determine that there was no flashing. Thus, the lack of flashing was a condition which was capable of discovery by reasonable observation following the completion of construction. Cf. Albrecht v. Clifford, 436 Mass. at 715 (declining to decide whether defects in fireplaces, chimneys and flues were latent but describing the issue as “close” where a mason was able to determine that they violated the building code by making observations and taking measurements of the materials and components that were readily accessible). Accordingly, the Trustees cannot recover for breach of the warranty of habitability based on the inadequately flashed windows. 3.Bathroom Ventilation

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