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 venting of the bathrooms into the attic or into the space between the ceiling and the floor breached the warranty of habitability. The improper bathroom ventilation was a latent defect which was hidden or concealed and not discoverable by reasonable and customary observation or inspection once construction was complete. See Albrecht v. Clifford, 436 Mass, at 710, 713. The LEA Group identified the improper venting based on a mere visual review of the unfinished attics. However, a condominium owner would not suspect that the ventilation violated the building code from mere observation of the bathroom. See Overton v. Kirtgsbrooke Development, Inc., 788 N.E.2d 1212, 1218 (Ill.App. 5 Dist.), rev. den., 803 N.E.2d 485 (Ill. 2003) (for purposes of warranty of habitability, defect is latent if not discovered by exercise of care by ordinary owners without expertise in home building); Tyus v. Resta, 476 A.2d 427, 433 (Pa.Super. 1984) (for purposes of warranty of habitability, defect is latent if not discoverable by reasonable inspection by intended purchaser, not an expert). 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). Thus, the bathroom ventilation system was a latent defect, and one which manifested itself after the condominium construction was substantially complete.

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