## Facts

- Peter and Margaret Albrecht bought a newly constructed single-family home from Alfred Clifford, an architect and general contractor acting as a builder-vendor.
- The home contained nine fireplaces and chimneys.
- The purchase and sale agreement included an express warranty (Exhibit A) that survived delivery of the deed for one year and stated that systems (including fireplaces and chimneys) would work properly, the premises complied with codes, and construction was good and workmanlike.
- The express warranty required written notice of defects within one year of delivery of the deed.
- The closing occurred on October 26, 1993.
- In December 1996, neighbors advised the Albrechts that their own Clifford-built fireplaces/chimneys were defective.
- The Albrechts hired a mason who found similar defects in the Albrechts’ fireplaces and chimneys.
- On February 6, 1998, the Albrechts sued for breach of contract, breach of implied warranty of habitability/good workmanship, fraud and deceit, negligent misrepresentation, and violation of Massachusetts consumer protection law (G.L. c. 93A).

## Issues

1. Whether Massachusetts recognizes an implied warranty of habitability (good and workmanlike construction) in the sale of a newly constructed residence by a builder-vendor.
2. Whether the claims for fraud and deceit, negligent misrepresentation, G.L. c. 93A, and breach of implied warranty were barred by statutes of limitations or saved by the discovery rule.
3. Whether the express contract claims were barred by (a) merger of the purchase and sale agreement into the deed and (b) the agreement’s one-year express warranty notice/limitation provisions.

## Decision

- The Supreme Judicial Court recognized an implied warranty of habitability arising from the sale of a newly constructed home by a builder-vendor.
- The Court nevertheless affirmed summary judgment for Clifford on all claims.
- The tort, G.L. c. 93A, and implied-warranty-based claims were time-barred because the limitations periods were not tolled under the discovery rule.
- One contract count was barred by the merger doctrine because the relied-upon contractual provision did not survive delivery of the deed.
- The other contract count, based on the one-year express warranty, was barred because the buyers did not give the required written notice within the one-year period.

## Legal Principles

- A builder-vendor who sells a newly constructed residence impliedly warrants that the home is fit for habitation and constructed in a good and workmanlike manner.
- To prove breach of the implied warranty, a buyer must show, at minimum: purchase from a builder-vendor who built for sale; a latent defect; existence of the defect at sale; impact on habitability; and notice to the builder-vendor within a reasonable time after discovery.
- Under the discovery rule, limitations periods run from when the plaintiff knew or should have known of the injury and its likely cause; the plaintiff bears the burden to show reasonable diligence and that earlier discovery was not expected.
- In real estate transactions, contractual provisions not stated to survive closing generally merge into the deed and cannot support post-closing contract liability.
- Parties may impose enforceable contractual notice and time limits in express warranties; failure to comply bars the claim.

## Conclusion

Massachusetts adopted an implied warranty of habitability for newly built homes sold by builder-vendors, but the buyers in this case recovered nothing because their noncontract claims were untimely and their contract claims were defeated by merger and an unfulfilled one-year express warranty notice requirement.


Albrecht v. Clifford, 767 N.E.2d 42 (Mass. 2002)