New-Home Construction Defects in Massachusetts: Buyer's Rights Against the Builder

Understanding the legal bases upon which to take action against a Massachusetts builder whose work in building your new home was substandard.

Let's imagine a developer is planning a new community of homes in Needham, Massachusetts, a quiet suburb outside of Boston. With a new family, you decide now is a good time to buy. You meet with the developer’s representatives, who show you renderings and specifications for what the homes will look like – size, quality, and materials. You agree to pay their asking price. The home gets built and you move in with your family.

At first, the house seems perfect. But as the weeks and months pass, you begin to notice various issues. Perhaps the pipes in the basement are leaky; the wood used to construct the deck doesn’t seem to be water-resistant; and the skylight windows in the attic are already cracking. As these defects grow worse over time, the value of your home is diminishing. How do Massachusetts’s construction laws help you to recover for these defects?

First, Give Your Developer a Chance to Cure the Problems

Unlike some states, Massachusetts does not require that you write your developer a letter and offer it the chance to fix the construction defects before you file litigation. Nevertheless, sending this sort of letter is probably a good idea.

Many developers would rather invest a bit more in order to keep a homeowner happy and avoid legal fees, rather than submit to time-consuming litigation. Consider speaking with a local attorney, and possibly investing in having the attorney write this sort of demand letter. A short letter could save you years of stressful litigation, should the developer decide to be reasonable by fixing the issues with your home.

Claims Against a Massachusetts Builder for Breach of Contract

A demand letter won’t always bring your developer to the negotiating table. Sometimes, you’ll need to file a lawsuit. If you sue your builder for construction defects, breach of contract will almost certainly be your primary legal theory.

When you moved into your newly constructed Massachusetts home, the builder or developer likely gave you a stack of written materials describing the home. The materials told you how big it would be, what the walls, countertops, and other finishings would look like, whether there would be a garage or swimming pool, and much more. You probably signed a contract, outlining your payment and its promise to construct the home according to certain specifications.

By definition, if your builder delivered to you a house that is different from (and worse than) what was promised in those contractual documents, it breached this agreement – it failed to construct the house as agreed upon. Here, all of the materials the builder gave you, including photos, plans and descriptions of the home, and emails describing the work will be useful in demonstrating your rightful expectations at the time you entered into the contract.

For example, if the various documents clearly show that you thought you were getting a home with a skylight, but the home as built contains no skylight, this demonstrates the builder’s breach.

Massachusetts has a six-year statute of limitations for breach of contract claims under state law, Mass. Gen. Laws Ch. 260, § 2. This means that homeowner claims based on a contract with the builder must be brought within this period, or they are barred. An exception to this would be when a homeowner could not have reasonably discovered the existence of the breach until after the period – for example, if the roof caves in after seven years because the builder used low-quality wood and the homeowner couldn’t have reasonably known.

Claims of Negligence Against a Massachusetts Builder

Another possible basis upon which to sue a Massachusetts builder is negligence. Ordinary negligence in the context of construction defects is said to be the builder’s failure to exercise the correct standard of care.

In Massachusetts, in order to establish a claim for negligence, a party must establish that 1) a duty was imposed by law; 2) the builder failed to conform to that standard; 3) there was a causal link between the failure to meet the standard of care and the resulting construction defect; and 4) actual economic damages resulted from the injury to your home.

Massachusetts courts hold that builders have an implied duty to perform services required by their contract with homeowners in a skillful, careful, diligent, and workmanlike manner, even without a written agreement. Note that Massachusetts has a 3-year statute of limitations for property damage caused by basic negligence under Mass. Gen. Laws ch. 260, § 2A.

Shortened Limitation Created By Massachusetts’ Statute of Repose

As a plaintiff, you need to be very careful of Massachusetts’s Statute of Repose for improvements to real property, found in the law at Mass. Gen. Laws ch. 260, § 2B.

Under this state law, homeowners have six years in which to file suit after substantial completion of the construction project. If the homeowner waits until the builder has been “off the job” for six or more years, he or she is probably barred from filing suit for the alleged construction defect, regardless of when the defect was discovered.

This is different from the law in many other states, where the limitation period is tolled (delayed) based on when the homeowner actually discovers the existence of the defect. This statute is meant to give certainty to builders, so that they need not worry about potential claims after six years have gone by.

However, it means homeowners must be vigilant to ensure they do not get blocked by the statute. If you see any signs of trouble with the construction of your new home, investigate further rather than waiting for it to fully manifest! A small leak or other problem could be a sign of something larger lurking beneath or within. The six-year window of the statute of repose begins to run regardless of whether the homeowner could have known about the defect in construction.

Mediation, Arbitration, and Shortened Claim Periods in Construction Contracts

Before filing your lawsuit, check your contract to see whether other steps must be taken first. Many construction contracts, in Massachusetts and elsewhere, contain a dispute resolution clause. That clause may provide that the homeowner is required to go to mediation with the builder or developer before filing suit.

Mediation, in this situation, means a facilitated negotiation for settlement, led by a third-party neutral individual. Often, that person will have significant experience with construction law, engineering, or building development.

Your contract may also contain an arbitration clause. This clause would require that you go to arbitration against the builder or developer instead of litigation in a court of law.

In arbitration, either one or three individuals – again, typically with experience in construction or related fields – will issue a final determination on your dispute. The advantage of arbitration is that it is usually quicker than litigation, saving you money on legal fees. A potential disadvantage, however, is that the arbitrator's decisions are probably final, that is, not subject to appeal or further court proceedings.

Finally, take note of any aspects of the contract that shorten your statute of limitations or ability to make claims. It is not uncommon for construction contracts to shorten the amount of time that a homeowner has in which to file a legal claim against the builder. An attorney with experience in construction defect litigation in Massachusetts will be able to carefully review the document for these sorts of limitations and tell you whether they can be enforced against you.

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