What this makes urgent for boards and declarants

Indemnity language in the developer, general contractor and design contracts is now a live drafting priority rather than boilerplate. Three situations, each with a different action.

A newly created condominium, before turnover. The contracts are already signed and the association had no say in them. What the board can do at transition is obtain the contracts — the design agreement, the general contract, the major subcontracts — and have counsel read them for indemnity provisions. An association that does not hold its own construction contracts cannot know whether it has a route around §2B.

An association past the six-year mark discovering a defect. The tort route is gone. The question becomes whether an express indemnity provision exists in a contract the association can enforce, and whether the association has standing to enforce it — which depends on whether the association is a party, an assignee, or a third-party beneficiary. That is a document question, answerable now, before there is a dispute.

An association about to sign a major capital contract. This is where the decision has forward effect. A properly drafted express indemnity provision in a roof, envelope or structural contract gives the association a contract claim that outlives the repose period on the tort claim. It is a negotiating point worth spending on.

The limits

Three, and they are real.

First, “express” is doing the work. The claim survived because the parties had negotiated an indemnification promise. A contract silent on indemnity does not acquire one by implication, and a general covenant of good faith will not convert a tort into a contract — a point the Appeals Court made in a different context in Cranberry Commons Condominium, LLC v. Barbagallo, decided 21 July 2025, where claims pleaded as contract but sounding in conversion drew the three-year tort period rather than the six-year contract period.²

Second, the contract limitations period still applies. Escaping repose is not escaping limitations. A written contract claim in Massachusetts carries a six-year limitations period running from accrual — which is a discovery-sensitive question, unlike repose, but it is not unlimited.

Third, this does not revive expired tort claims. Negligence and implied warranty claims cut off by §2B stay cut off.

The other side of the same problem

A Superior Court decision from the same period shows what happens when an association does not plead everything in time. In Trustees of Three-Fifty West Broadway Condominium Trust v. Leoutsakos, Suffolk civil action 2184CV02254, the certificate of occupancy issued 9 September 2014 and the association sued on 22 September 2017 over storage, intercom and elevator issues. It then filed a second amended complaint on 15 April 2021 adding negligence and implied warranty claims for water intrusion and defective windows, lobby, siding, roof and balconies.

The court held those later claims do not relate back and are barred by §2B, citing Tindol v. Boston Housing Authority for the proposition that relation back cannot be used to circumvent a statute of repose. The trustees appealed; no Appeals Court decision has issued.³

The combined lesson is unambiguous: plead every defect within six years, or have an express indemnity clause. Suing early on small problems does not preserve the right to add large ones later.

What to watch next

Two things. Whether the Appeals Court takes up Leoutsakos and says anything about relation back in the condominium context, where the practical difficulty — that building-envelope failures announce themselves years after the cosmetic complaints — is acute. And whether the legislative fix returns: Massachusetts condominium advocates have pushed in past sessions for the accrual of construction-defect claims to be delayed until the declarant actually turns over board control to unit owners. No such bill was confirmed as filed in the 194th General Court, and the numbers circulating for one belong to earlier sessions.