In D’Allessandro v. Lennar Hingham Holdings, LLC, 2019 WL 5550629, *6 (D. Mass. Oct. 28, 2019), a Massachusetts court recently held that the improvement to real property for statute of repose purposes was the completion of an entire condominium project versus completion of each individual building.
The project at issue was a multi-phased 150 unit condominium project consisting of twenty-eight different buildings constructed between 2008 and 2015. For six of the buildings, the architect signed certificates of substantial completion and five of the buildings received their certificate of occupancy more than six years before the action commenced. Plaintiffs brought claims of negligence, among others, resulting in damage from deficient design and construction in the common areas of the condominiums.
The Massachusetts statute of repose prohibits actions in tort filed more than six years following substantial completion of the improvement and the taking of possession for occupancy by the owner. The D’Allessandro court considered what constituted an “improvement” that must be “substantially completed” for purposes of the statute of repose. More specifically, the court addressed the issue of whether a portion of a project can constitute completion of an improvement for triggering the repose period even while the project remains under construction. Plaintiffs argued the improvement was the condominium development as a whole and defendants argued each individual unit was the improvement for statute of repose purposes.
The court agreed with plaintiffs finding that the improvement was the condominium project as a whole because the scope of the project remained the same since inception; the same architect and general contractor were used throughout; and the project was defined legally as a single condominium with a single trust controlling the common elements. Thus, the project was not a series of improvements, but one improvement and the statute of repose commenced upon completion of the entire improvement. Partial completion of a project does not trigger the statute of repose when the overall project remains under way.
Colorado’s statute of repose is similar to Massachusetts. Colorado’s statute of repose states that claims shall not be brought more than six years after the substantial completion of the improvement to the real property which ultimately causes injury. Practitioners may consider similar arguments to those made in D’Allessandro when facing statute of repose arguments. Specifically, if a multi-unit project is defined as one whole project without discrete phases, an argument may be made the statute of repose is triggered upon completion of the entire project.
Colorado case law continues to develop regarding when the statute of repose commences and cases like D’Allessandro may provide guidance to Colorado courts in determining limitations issues. Johnson Law specializes in statute of repose and statute of limitations issues as they relate to construction. Contact a Johnson Law attorney today to discuss the facts of your individual circumstances.