Berish v. Bornstein, 437 Mass. 252 (2002)

Citation: Berish v. Bornstein, 437 Mass. 252 (2002)
Parent Document: Berish v. Bornstein, 437 Mass. 252 (2002)
Jurisdiction: Massachusetts (state)
Effective Date: 2002-06-28
Original Source: https://www.courtlistener.com/opinion/6578538/berish-v-bornstein/ ↗

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When there are defects or other problems in the common areas, the organization of unit owners has the exclusive right to seek a remedy. G. L. c. 183A, § 10 (b) (4). See Strauss v. Oyster River Condominium Trust, supra. This exclusive right, combined with a unit owner’s virtually nonexistent control over the common areas, may result in an incomplete remedy for unit owners against a builder whose improper design, material, or workmanship is responsible for a defect in a common area that causes units to be unhabitable or unsafe.26 To ensure that there is a complete remedy for a breach of habitability in the sale of condominium units, we conclude that an organization of unit owners may bring a claim for breach of the implied warranty of habitability when there are latent defects in the common areas that implicate the habitability of individual units.27 To establish such a claim, the organization of unit owners *266must demonstrate that (1) it is an organization of unit owners as defined by G. L. c. 183A, § 1; (2) the common area of the condominium development contains a latent defect; (3) the latent defect manifested itself after construction of the common areas was substantially completed28; (4) the defect was caused by the builder’s improper design, material, or workmanship; and (5) the defect created a substantial question of safety as to one or more individual units, or made such units unfit for human habitation. In addition, the organization of unit owners must bring this claim within the three-year statute of limitation and the six-year statute of repose set forth in G. L. c. 260, § 2B, which begins to run at “the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.”

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