I live in a Cambridge condo (old building, circa 1890s) and my association recently learned that the developer who renovated our building in 2005 installed a third roof on top of two existing layers. I've been told by several roofers that the legal code allows only two roofs. If this is true, is there any legal action that can be taken against the developer?
A second question: is there any implicit warranty for our roof if it was advertised as new in 2005? There are all sorts of other problems and leaks, and we are now considering replacing the entire thing. I seem to recall my real estate attorney mentioning something about this possibility at closing. I'm paraphrasing, but I believe he said something along the lines of "since a warranty isn't explicitly mentioned or excluded from the closing documents, that it's kind of a bonus for me because it's implied for 10 years." I may be remembering this wrong though, and I'm not sure if he was referring to the roof or other parts of the building.
Statute of limitations in MA
Your roofers are correct about the three layers of roofing: a definite no no. The questions is whether, assuming the developer is still alive and a viable target, your association could recover damages. I do not know the answer to that question. I am not aware of any ten year warranty, so we would likely be talking about some kind of contract action. The statute of limitations for a breach of contract action in Massachusetts is six years. However, that period of time can be longer if the "discovery rule" comes into play. Under that rule, if the injured party is not aware of the breach of contract, and could not have reasonably been expected to discover the breach, then the six year period does not begin to run until the injured party discovers—or should reasonably have discovered—the breach. Depending on the amount of money involved, your association may want to talk to an attorney who does litigation. Good luck.
Response by Thaddeus
I will investigate the breach of contract angle. Meanwhile, I found building permits that show the developer didn't disclose to the city his intention to replace or install a roof. Yet I have documents from the developer saying he did replace the roof, and documents from roofers saying the roof isn't up to code. So from what I can tell, the developer violated the law twice by: a) installing a roof that was not up to code, and b) installing a roof without a permit. I'd love to believe this is a slam dunk situation but, like you said, it could be tough to recover damages from this guy. Anyway, thanks again for your time.