2026-09-10 · Massachusetts · Courts

What happened. The Supreme Judicial Court held unanimously that the six-year construction statute of repose does not bar a claim for breach of an express contractual indemnification provision, even where the underlying loss was caused by the design professional's negligence.

Trustees of Boston University v. Clough, Harbour & Associates LLP, docket SJC-13685, was decided 16 April 2025 (Wendlandt, J.). Summary judgment for the design firm was reversed.¹

The facts

• BU contracted with an architectural and engineering firm in 2012 to design an athletic field, which opened in 2013.
• The contract contained an express indemnity clause covering expenses caused by the firm's negligent design.
• The design failed to account for seasonal expansion in the joists of the parking structure beneath. The field sagged and became unsafe.
• BU discovered the defects in September 2017 and sued in July 2020 — more than six years after the field opened.

The reasoning

M.G.L. c. 260 §2B applies, by its plain terms, only to “actions of tort.” BU's claim was enforcement of a negotiated contractual promise, not a tort action. The repose period therefore did not reach it.

Why this is the most consequential recent decision for Massachusetts associations

Condominium construction-defect recoveries in this state have been repeatedly cut off by §2B. The repose period runs six years from the earlier of the opening of the improvement or its substantial completion, and unlike a limitations period it does not wait for discovery — it can extinguish a claim before anyone knows the claim exists.

It is made worse for condominiums by D'Allesandro v. Lennar Hingham Holdings (2021), which held that in a phased condominium each building is its own “improvement” with its own repose clock. A twelve-building phased development can have twelve different deadlines, several of which have expired by the time the owners control the board.

Clough Harbour does not fix that. It opens one durable route around it — and only where an express indemnity clause exists in the construction or design contract.

1. Conn Kavanaugh, case note on Trustees of Boston University v. Clough, Harbour & Associates (SJC-13685, 16 April 2025) ↩
2. Cranberry Commons Condominium LLC v. Barbagallo, Mass. App. Ct. 24-P-492 (21 July 2025), full opinion text ↩
3. MG+M The Law Firm, case note on Trustees of Three-Fifty West Broadway Condominium Trust v. Leoutsakos ↩