Condo collapse should prompt changes in local laws

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The recent collapse of a high rise in Surfside, Florida, has sent a shiver through condo dwellers around the country and raised questions about whether legislative changes could help prevent a similar tragedy here.  

One obvious response to the disaster would be to limit or even eliminate the restrictions imposed by statutes of repose. In New York, for example, there’s no time bar on the ability to sue the engineers and architects of a building, as long as notice of suit is given.

And in Minnesota, after 180 people died in a bridge collapse, the Legislature gave the state the right to seek reimbursement for payments to the victims, “notwithstanding any statutory or common law to the contrary,” including the state’s statute of repose. While the successor in interest to the bridge’s designer challenged that change, the state’s highest court held that the Legislature could resurrect liability, so long as the change was rationally related to a legitimate state purpose.

But most states, including Massachusetts, have retained statutes of repose related to construction. Here, for example, G.L.c. 260, section2B, precludes any “action of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration” of property after six years.

While it’s questionable whether it is good public policy to provide that architects, designers and engineers should face liability for construction projects that may have been completed decades ago, there are some changes that could be made to the statute of repose short of wholesale revision. 

For example, the limit period could be extended. Six years is a small fraction of the average useful life of a building and may not be enough time for construction or design defects to become evident.  

Or the Legislature could exclude from repose the protections otherwise available when there is evidence that construction was not in conformity with the building codes in effect when the building was designed and constructed.

Some bills that are already pending seek to attack the problem from different angles. For example, a 2020 Supreme Judicial Court decision noted that problems can arise when a developer retains control of a condominium association even after some or all of the building is occupied and blocks suits over alleged construction defects. 

H. 1500 would make anti-litigation provisions in condo documents unenforceable and void as against public policy unless adopted after unit owners have taken control of the condo association. H. 1501 would bring this same “control date” to bear on when the clock starts ticking on the statute of repose.

Another problem with condo developments is that there is no single owner, and it can at times be challenging to get boards to agree to invest in maintenance. That was apparently the case with the building that collapsed in Florida. 

H. 1387 would amend G.L.c. 183A, section10, to refine the requirement that condominium associations maintain an “adequate replacement reserve fund” by specifying that associations must hire certified engineering firms to conduct periodic reserve fund studies and develop appropriate funding plans to meet identified maintenance needs.

Previous attempts at changes of this sort were defeated in the face of fierce opposition from the Home Builders & Remodelers Association of Massachusetts. But given the recent tragedy in Florida, the Legislature should take steps now to address the gaps in local law.

Massachusetts Lawyers Weekly’s Editorial Advisory Board provides knowledge and guidance for the editorials that appear on this page. The board is an advisory panel only, with no official voting or participation record. The input from the board is a tremendous resource to Lawyers Weekly; however, the editorials represent the position of the newspaper and its editorial staff, not the members, nor any given member, of the board. 

BOARD OF EDITORS: Robert J. Cordy, Boston; Sophia L. Hall, Boston; Martin W. Healy, Boston; Margaret R. Hinkle, Boston; Thomas M. Hoopes, Boston; Regina M. Hurley, Boston; Shiva Karimi, Boston; Marsha V. Kazarosian, Haverhill; Andrea C. Kramer, Boston; Renee M. Landers, Boston; Richard L. Levine, Boston; Elizabeth N. Mulvey, Boston; Eric J. Parker, Boston; C. Max Perlman, Boston; Patricia M. Rapinchuk, Springfield; Martin R. Rosenthal, Boston; Jeffrey Sacks, Boston; Carol A. Starkey, Boston