Legal Memorandum: Entitlement to Repose in MA

Issue: In Massachusetts, is a defendant entitled to repose because of improvements to real property?

Area of Law: Real Estate Law
Keywords: Repose; Improvements to real property; Tort action
Jurisdiction: Massachusetts
Cited Cases: 437 N.E.2d 1082; 263 So. 2d 209; 518 N.E.2d 849; 486 N.E.2d 58; 12 F.3d 1154; 437 N.E.2d 514; 102 F.3d 1173; 45 Mass. App. Ct. 120; 556 N.E.2d 1009; 437 N.E.2d 237; 14 Mass. App. Ct. 242; 461 N.E.2d 808; 489 N.E.2d 172; 506 N.E.2d 509; 591 N.E.2d 1079
Cited Statutes: Mass. Gen. Laws ch. 260, § 2B
Date: 02/01/2001

           Massachusetts General Laws chapter 260, § 2B provides that an

[a]ction of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property . . . shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after 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.

Mass. Gen. Laws ch. 260, § 2B (2000). 

As the statute states, Chapter 260, § 2B applies to all tort claims.  See, e.g., McDonough v. Marr Scaffolding, Co., 412 Mass. 636, 591 N.E.2d 1079 (1992).  Implied warranty claims are, in essence, tort claims, and consequently they, too, are barred by the statute of repose in appropriate cases.  See Klein v. Catalano, 386 Mass. 701, 708, 437 N.E.2d 514 (1982).   Express warranty claims, however, are contractual rather than tort-like in nature, and they are therefore not subject to § 2B.  Id., 386 Mass. at 708, 718; Anthony’s Pier Four, Inc. v. Crandall Drydock Eng’rs, Inc., 396 Mass. 818, 822, 489 N.E.2d 172 (1986).  A plaintiff may not escape the consequences of the statute of repose merely by labeling a claim as contractual; rather, the court must look to the gist of the […]

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