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 a breach of trust occurs, the beneficiary of the trust is “entitled to be put in the position he would have been in if no breach of fiduciary duty had been committed.” Fine v. Cohen, 35 Mass. App. Ct. 610, 616 (1993). Cf. Restatement (Third) of Trusts § 205(b) (1990) (trustee who commits breach of bust is “chargeable with the amount required to restore the values of the bust estate and trust distributions to what they would have been if the bust had been properly administered). Thus, a trustee who breaches his fiduciary duty to “maintain, repair, and replace” common areas is liable for the cost of returning the unit owners’ association to the position that it would have been *271in had such steps been undertaken. In circumstances such as those present here, where the cost of repair and replacement, if undertaken, would have been assessed against the unit owners association as “common expenses,”31 the liability of a trustee (if any) would be limited to additional costs incurred as a result of the delayed undertaking of those tasks. In this respect, Bomstein is correct as to the proper measure of damages in the ordinary case.

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