NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12327

TRUSTEES OF THE CAMBRIDGE POINT CONDOMINIUM TRUST vs. 

CAMBRIDGE POINT, LLC, & others.1

Middlesex. October 5, 2017. - January 19, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &

Kafker, JJ.

Condominiums, By-laws, Management, Common area. Real Property, 

Condominium. Public Policy.

Civil action commenced in the Superior Court Department on 

April 3, 2014.

A motion for partial summary judgment was heard by Rosalind 

H. Miller, J.; a motion for reconsideration was considered by 

her; and motions to dismiss were heard by Peter B. Krupp, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Edmund A. Allcock for the plaintiffs.

John F. Gleavy for CDI Commercial Development, Inc., & 

another.

David Aleksic, for Frank Fodera & another, was present but 

did not argue.

 1 Northern Development, LLC; CDI Commercial Development, 

Inc.; Giuseppe Fodera; Frank Fodera; Frank Fodera, Jr.; and 

Anahid Mardiros.
2

David T. Keenan, for Anahid Mardiros, was present but did 

not argue.

Henry A. Goodman & Ellen A. Shapiro, for Community 

Associations Institute, amicus curiae, submitted a brief.

Cailin M. Burke, Julie B. Heinzelman, Diane R. Rubin, 

Thomas O. Moriarty, & Kimberly A. Bielan, for Real Estate Bar 

Association for Massachusetts, Inc., & another, amici curiae, 

submitted a brief.

GANTS, C.J. In this action, a condominium trust's board of 

trustees has filed suit against the developers of the 

condominium for damages arising from various design and 

construction defects in the condominium's common areas and 

facilities. The condominium bylaws, however, provide that the 

trustees cannot bring any litigation involving the common areas 

and facilities against anyone other than a unit owner unless 

they first obtain the consent of at least eighty per cent of the 

unit owners. The issue on appeal is whether this bylaw 

provision is void, either because it violates the Condominium 

Act (act), G. L. c. 183A, or because it contravenes public 

policy. We conclude that it is void because it contravenes

public policy.2

Background. In 2007, Cambridge Point, LLC, as the 

declarant of a predominantly residential forty-two-unit 

condominium in Cambridge, filed in the Middlesex South District 

registry of deeds a master deed, a declaration of trust, and the 

 2 We acknowledge the amicus briefs submitted by the 

Community Associations Institute and by the Real Estate Bar 

Association for Massachusetts, Inc., and the Abstract Club.
3

bylaws of the Cambridge Point Condominium Trust (trust). The 

trust's board of trustees (trustees) is responsible for 

administering the affairs of the trust. Among the powers and 

duties committed to the trustees is the authority under § 1(o) 

of the bylaws to "conduct[] litigation as to any course of 

action involving the common areas and facilities." However, 

this authority is limited by a condition precedent that requires 

the trustees, before initiating any litigation against anyone 

who is not a unit owner, (1) to deliver a copy of the proposed 

complaint to all unit owners; (2) to specify a monetary limit of 

the amount to be paid as legal fees and costs in the proposed 

litigation; (3) to inform all unit owners that, if they consent 

to the initiation of the litigation, they will forthwith be 

separately assessed this amount of legal fees and costs as a 

special assessment; and (4) within sixty days after a copy of 

the proposed complaint has been delivered to the unit owners, to 

receive the written consent of not less than eighty per cent3 of 

all unit owners to bring the litigation.4

 3 Section 32 of the condominium's bylaws defines 

"[p]ercentage of [u]nit [o]wners" as "the owners of the 

specified percentage in the aggregate in interest of the 

undivided ownership in the common areas and facilities of the 

[c]ondominium."

4 Section 1(o) of the condominium's bylaws provides in

relevant part:

"The [b]oard of [t]rustees shall have all powers necessary 
4

In 2012, the trust began receiving complaints from unit 

owners about pervasive water leaks, which were infiltrating and 

damaging the building envelope, eventually causing a mold 

 

for administering the affairs of the [c]ondominium as set 

forth in [G. L. c. 183A] . . . . Such powers and duties of 

the [t]rustees shall include, but shall not be limited to, 

. . .

(o) conducting litigation as to any course of action 

involving the common areas and facilities . . . .

"Notwithstanding any provision of the [m]aster [d]eed, or 

the [d]eclaration of [t]rust of the [c]ondominium [t]rust, 

or of these [b]ylaws or the [r]ules and [r]egulations to 

the contrary, neither the [t]rustees acting in their 

capacity as such [t]rustees or acting as representatives of 

the [u]nit [o]wners, nor any class of the [u]nit [o]wners 

shall bring any litigation whatsoever unless a copy of the 

proposed complaint in such litigation has been delivered to 

all of the [u]nit [o]wners, and not less than eighty [per 

cent] (80%) of all [u]nit [o]wners consent in writing to 

the bringing of such litigation within sixty (60) days 

after a copy of such complaint had been delivered to the 

[u]nit [o]wners and specifying as part of the written 

consent a specific monetary limitation to be paid as legal 

fees and costs and expenses to be incurred in connection 

therewith, which amount shall be separately assessed as a 

special assessment effective forthwith at the time of said 

affirmative consent. Notwithstanding any provisions of the 

[m]aster [d]eed, or of the [d]eclaration of [t]rust of the 

[c]ondominium [t]rust . . . or these [b]ylaws or the 

[r]ules and [r]egulations, the provisions of this 

[p]aragraph . . . shall not be amended except by vote of at 

least eighty [per cent] (80%) of [u]nit [o]wners. The 

provisions of this [p]aragraph (o) shall not apply to 

litigation by the [c]ondominium [t]rust against [u]nit 

[o]wners with respect to the recovery of overdue [c]ommon 

[e]xpenses or [s]pecial [a]ssessments or to foreclose the 

lien provided by [G. L. c. 183A, § 6], and [G. L. 

c. 254, §§ 5 and 5A], . . . or to enforce any of the 

provisions of the [m]aster [d]eed, or the [d]eclaration of 

[t]rust of the [c]ondominium [t]rust, or these [b]ylaws 

. . . , or the unit deed, against [u]nit [o]wners . . . ."
5

infestation both on the exterior sheathing of the building 

envelope and within individual units. An investigation 

conducted by an engineering firm in 2013 identified myriad 

design and construction defects with the condominium. When the 

trust's demands that the developers repair the defective 

construction proved futile, the trust sought out a contractor to 

repair the building, who estimated the costs of repair as 

exceeding $2 million.

On April 3, 2014, after having delivered to the unit owners 

the proposed complaint and a statement of the estimated legal 

fees and costs of the litigation, but without having received 

the written consent of at least eighty per cent of the unit 

owners, the trustees filed a verified complaint in the Superior 

Court against the developers of the condominium5 alleging

negligence, breach of the implied warranty of habitability, 

negligent misrepresentation, fraudulent misrepresentation and 

concealment, and breach of fiduciary duty. In their complaint, 

 5 We refer to all of the defendants as "developers of the 

condominium" but recognize that the defendant Anahid Mardiros 

does not appear to have participated in the drafting of the 

condominium documents or the development and maintenance of the 

condominium. She has filed a separate brief, claiming that her 

only affiliation with the other defendants is as a trustee of 

the Cambridge Point Nominee Trust, which is not a defendant 

here. To resolve this appeal, we need not (and do not) address 

whether Mardiros is properly a defendant in this action. We 

also note that, pursuant to a stipulation by the parties, the 

claims against the defendant Frank Fodera, Jr., were dismissed

prior to the judgment of dismissal at issue in this appeal.
6

the trustees also sought a judgment declaring that § 1(o) of the 

bylaws is void. They alleged that, because the developers and 

their affiliates had "reserved for themselves, and continue to 

own, enough units to prevent an [eighty per cent] supermajority 

of [u]nit [o]wners to authorize the [t]rust to institute a 

lawsuit," § 1(o) effectively prevented them from obtaining legal 

redress.6

The trustees moved for partial summary judgment on their 

claim seeking a judgment declaring that § 1(o) of the bylaws is 

void. The first motion judge denied the motion.7 The developers 

then moved to dismiss the complaint on the grounds that the 

trustees had not obtained the minimum level of consent required 

under § 1(o). The second motion judge allowed the motions to 

dismiss, concluding that the act "does not prohibit adoption of 

a bylaw that requires a percentage of unit owners to consent to 

litigation before litigation is filed by the trustees of a 

condominium," and that the requirements of § 1(o) did not 

 6 The trustees also sought a judgment declaring that 

§ III(i) of the declaration of trust, which provides for the 

indemnification of the trustees "against any liability incurred 

by them," is void, but neither motion judge addressed this claim 

and it is not before us on appeal.

7 The first motion judge initially ruled that the trustees 

could proceed with the litigation if they obtained the consent 

of eighty per cent of the "disinterested unit owners," defined 

as those who had neither business, financial, nor familial ties 

to the developers, but, on reconsideration, she determined that 

under § 1(o), the litigation required the consent of at least 

eighty per cent of all unit owners.
7

constitute "overreaching" in contravention of public policy 

where the unit owners knew or should have known of these 

requirements prior to purchasing a unit. The trustees appealed, 

and we granted their application for direct appellate review.

Discussion. The trustees argue that the provisions in 

§ 1(o) of the bylaws requiring them to obtain the consent of at 

least eighty per cent of the unit owners before initiating 

litigation against the developers are void for two reasons: (1) 

they circumscribe the power of the trustees to conduct 

litigation, in violation of the act; and (2) they effectively 

shield the developers from any litigation brought on behalf of 

the unit owners for defects in the construction and design of 

the condominium, in contravention of public policy. We address 

each argument in turn.

1. Does the act prohibit any requirement of unit owner 

consent before the trustees may initiate litigation? Under 

§ 10 (b) (4) of the act, a condominium trust, as the entity 

granted the authority to manage the common areas and facilities 

of the condominium, "shall have, among its other powers, the 

. . . rights and powers . . . [t]o conduct litigation . . . as 

to any course of action involving the common areas and 

facilities." We have recognized that, where there are defects 

or other problems in the common areas and facilities, the 

authority of a condominium trust to seek a remedy through 
8

litigation is "exclusive." Berish v. Bornstein, 437 Mass. 252, 

265 (2002). "[C]ondominium unit owners cede the management and 

control of the common areas to the organization of unit owners, 

which is the only party that may bring litigation relating to 

the common areas of the condominium development on their 

behalf." Id. at 263. See Strauss v. Oyster River Condominium 

Trust, 417 Mass. 442, 445 (1994) ("Only the trustees have the 

right to conduct litigation concerning 'common areas and 

facilities'" [citation omitted]). The trustees contend, in 

essence, that, because the act provides that they are the only 

party that may commence litigation to obtain compensation for 

damages arising from construction and design defects in the 

common areas, the act implicitly prohibits any bylaw provision 

that requires the trustees to obtain the consent of the unit 

owners before filing suit.

We are not persuaded that every bylaw that requires unit 

owner consent before the trustees may initiate litigation is in 

violation of the act. The act is "essentially an enabling 

statute, setting out a framework for the development of

condominiums in the Commonwealth, while providing developers and 

unit owners with planning flexibility." Scully v. Tillery, 456 

Mass. 758, 769 (2010), quoting Queler v. Skowron, 438 Mass. 304, 

312 (2002). It "sets forth certain minimum requirements for the 

establishment of condominiums, but 'those matters that are not 
9

specifically addressed in the statute are to be worked out by 

the involved parties.'" Scully, supra, quoting Queler, supra at 

312-313. Matters not specifically addressed by the act may be 

undertaken through the condominium bylaws, provided they are not 

"inconsistent" with the act or the master deed. See G. L. 

c. 183A, § 12 (d) ("The [bylaws] may also provide . . . [s]uch 

other provisions as may be deemed necessary for the management 

and regulation of the organization of unit owners or the 

condominium not inconsistent with [G. L. c. 183A] and the master 

deed").

The act declares that the "organization of unit owners," as 

defined in G. L. c. 183A, § 1 -- here, the trust -- has the 

power to "manage, and otherwise deal with" common areas and 

facilities of the condominium. G. L. c. 183A, § 10 (b) (1). 

However, the act does not grant unbridled authority to the trust 

with respect to every management decision that affects common 

areas and facilities. For example, it requires the agreement of 

at least seventy-five per cent of the unit owners to repair or 

restore a condominium in the event it suffers a casualty loss 

that exceeds ten per cent of the value of the condominium. 

G. L. c. 183A, § 17 (b) (1). It also provides that improvements 

to the common areas and facilities may not be treated as a 

"common expense" borne collectively by the unit owners unless at 

least seventy-five per cent of the unit owners agree to make the 
10

improvements. G. L. c. 183A, § 18 (b). The existence of these 

provisions in the act suggests that the Legislature did not 

believe that a condominium trust's power to manage the common 

areas and facilities is necessarily inconsistent with a 

requirement of unit owner consent for certain management 

decisions.

The trustees contend that, because the Legislature included

provisions in the act requiring unit owner consent under some 

circumstances, but failed to include any comparable provision 

governing the initiation of litigation, we can therefore infer 

that the Legislature intended to prohibit any bylaw requiring

unit owner consent for litigation. "However, the maxim of 

negative implication -- that the express inclusion of one thing 

implies the exclusion of another -- 'requires great caution in 

its application.'" Halebian v. Berv, 457 Mass. 620, 628 (2010), 

quoting 2A N.J. Singer & J.D. Shambie Singer, Sutherland 

Statutory Construction § 47.25, at 429 (7th ed. 2007). Such 

caution is especially appropriate here, given the enabling 

nature of the act and the wide latitude and flexibility it 

provides developers and unit owners to craft arrangements not 

specifically addressed by the act. See Scully, 456 Mass. at 

769. We cannot reasonably infer that, because the act requires 

unit owner consent for some management decisions, the 

Legislature intended to prohibit any bylaw requiring unit owner 
11

consent for other management decisions, including the decision 

to commence litigation concerning common areas or facilities.

See Halebian, supra, quoting 2A N.J. Singer & J.D. Shambie 

Singer, Sutherland Statutory Construction, supra at § 47.25, at 

433-435 (maxim of negative implication "will be disregarded 

. . . where its application would thwart the legislative intent 

made apparent by the entire act"). See also Bank of Am., N.A. 

v. Rosa, 466 Mass. 613, 619-620 (2013). Such an inference would 

require a clearer indication of legislative intent than mere 

negative implication. See generally Globe Newspaper Co.,

petitioner, 461 Mass. 113, 119 (2011) (applying maxim of 

negative implication would yield result not intended by 

Legislature). Therefore, we conclude that a bylaw provision

requiring unit owner consent to initiate litigation is not per 

se void because it is "inconsistent" with the act under 

§ 12 (d).

2. Is this particular bylaw void because it contravenes 

public policy? Having determined that the act does not 

bar every bylaw provision requiring unit owner consent prior to

litigation, we now consider whether this bylaw provision is void 

because it contravenes public policy. We begin by recognizing 

that the bylaw provision's requirement of the consent of at 

least eighty per cent of all unit owners makes it effectively 

impossible for the trustees to sue the developers of a 
12

condominium for damages arising from the defective construction

and design of common areas or facilities where, as here, the 

developers or their affiliates retain an ownership interest in 

at least twenty per cent of the units.8 The developers are not

likely to agree to sue themselves. And if the trustees cannot 

file suit against the developers, no one can, because their 

authority to bring such a suit is "exclusive" as to the common 

areas and facilities of the condominium. See Berish, 437 Mass.

at 265. Moreover, if the developers or their affiliates were to 

retain at least a twenty per cent ownership interest in the 

units for more than six years, they could effectively prevent 

any suit from being brought against them for design or 

construction defects in the common areas or facilities because

the statute of repose would bar any subsequent suit. See G. L. 

 8 Giuseppe Fodera, Frank Fodera, and Frank Fodera, Jr., 

formed, and currently manage, the defendant Cambridge Point, 

LLC. These three individuals contemporaneously formed, and 

currently manage, defendant Northern Development, LLC, the 

general contractor of the condominium. These three individuals 

and their affiliates owned at least 20.36 per cent of the 

beneficial interest in the condominium units: Giuseppe owned a 

5.58 per cent beneficial interest; Ciross, LLC, owned by 

Giuseppe's wife, owned a 6.54 per cent beneficial interest; a 

limited liability corporation owned by Giuseppe's relative owned 

a 3.49 per cent beneficial interest; and a trust formed by Frank

Fodera, who appointed his lawyer as the trustee, owned a 4.75 

per cent beneficial interest. Consequently, even without 

considering Mardiros's 14.87 per cent beneficial interest, see

note 5, supra, the developers and their affiliates alone could 

have thwarted any attempt by the trustees to initiate litigation 

against the developers for defects in construction in the common 

areas and facilities.
13

c. 260, § 2B (six-year statute of repose for tort actions for 

damages arising out of deficiency or neglect in design, 

planning, construction, or general administration of improvement 

to real property).9

Even if the developers or their affiliates did not retain a 

twenty per cent ownership interest, the provisions of § 1(o), in 

their entirety, make it extraordinarily difficult for the 

trustees to sue the developer for defective construction and 

design of common areas or facilities. First, the bylaw 

provisions require the consent of at least eighty per cent 

of all unit owners, so if the developers retain any ownership 

interest in the units, the trustees would need to obtain the 

consent of more than eighty per cent of the unit owners who are 

not affiliated with the developers -- and perhaps all of them,

if the developers have retained nearly twenty per cent of the 

units. Second, because the trustees must obtain the affirmative 

consent of at least eighty per cent of all unit owners, any unit 

owner who fails to respond to the request for written consent is 

treated as if he or she refused such consent, regardless of 

whether the unit owner is ill, has rented out the unit and is 

 9 Even if the developers or their affiliates were to retain 

at least a twenty per cent ownership interest in the units for 

just three years, any such suit might also be barred by the 

statute of limitations, depending upon the date the cause of 

action accrued. See G. L. c. 260, § 2B (actions in tort for 

negligent design or construction "shall be commenced only within 

three years after the cause of action accrues").
14

presently unavailable, or is simply unwilling to make a 

decision. Contrast Fla. Stat. § 720.303(1) (homeowners 

association required to "obtain the affirmative approval of a 

majority of the voting interests [present] at a meeting of the 

membership at which a quorum has been attained" prior to 

litigating any matter in which amount in controversy exceeds 

$100,000). Third, the bylaw provides that the entirety of the 

legal fees and costs to be incurred from litigation must be 

"separately assessed as a special assessment effective 

forthwith" upon consent, even though the legal fees and costs 

would be incurred and billed during the life of the litigation. 

See Mass. R. Prof. C. 1.15 (b) (3), as appearing in 471 Mass. 

1380 (2015) (even where retainer paid in advance, lawyer may not 

withdraw funds until fees earned or expenses incurred). Fourth, 

the trustees have only a brief time frame of sixty days to 

obtain the required written consent from the unit owners. 

Cumulatively, these requirements function as a formidable hurdle 

that the trustees are required to surmount before commencing

litigation against the developers.

We have long recognized that "the public interest in 

freedom of contract is sometimes outweighed by public policy, 

and in such cases [a] contract will not be enforced." Beacon 

Hill Civic Ass'n v. Ristorante Toscano, Inc., 422 Mass. 318, 321 

(1996). "The grounds for a public policy exception must be 
15

clear in the acts of the Legislature or the decisions of this 

court." Miller v. Cotter, 448 Mass. 671, 683 (2007). 

See Beacon Hill Civic Ass'n, supra at 321 ("'Public policy' in 

this context refers to a court's conviction, grounded in 

legislation and precedent, that denying enforcement of a 

contractual term is necessary to protect some aspect of the 

public welfare"). Consequently, we must consider whether a 

bylaw that makes it extraordinarily difficult -- and in this 

case, effectively impossible -- to obtain redress for a 

developer's defective construction and design of common areas 

and facilities is void because it is contrary to public policy.

Massachusetts has a well-established public policy in favor 

of the safety and habitability of homes, as reflected in our 

implied warranty of habitability under common law and in the 

legislative enactment of building codes. In Albrecht

v. Clifford, 436 Mass. 706, 710-711 (2002), we expanded our 

implied warranty of habitability under common law, holding that 

it attaches not only to residential leases but also to "the sale 

of new homes by builder-vendors in the Commonwealth." The

purpose of this implied warranty is "to protect a purchaser of a 

new home from latent defects that create substantial questions 

of safety and habitability." Id. at 711. Cf. Boston Hous. 

Auth. v. Hemingway, 363 Mass. 184, 199 (1973) ("[I]n a rental of 

any premises for dwelling purposes, under a written or oral 
16

lease, for a specified time or at will, there is an implied 

warranty that the premises are fit for human occupation"). 

Although the precise scope of the warranty depends on the 

circumstances of the case, "a home that is unsafe because it 

deviates from fundamental aspects of the applicable building 

codes, or is structurally unsound, or fails to keep out the 

elements because of defects of construction, would breach the 

implied warranty." Albrecht, supra. We have emphasized that 

"[the implied warranty] cannot be waived or disclaimed, because 

to permit the disclaimer of a warranty protecting a purchaser 

from the consequences of latent defects would defeat the very 

purpose of the warranty." Id. Cf. Boston Hous. Auth., supra

("This warranty [insofar as it is based on the State [s]anitary 

[c]ode and local health regulations] cannot be waived by any 

provision in the lease or rental agreement").

"The policy reasons that led us to adopt an implied 

warranty of habitability in the purchase of a new home apply 

equally to the purchase of a new condominium unit." Berish, 437 

Mass. at 263. In Berish, supra, we therefore held that an 

implied warranty of habitability attaches to the sale of new 

residential condominium units by builder-vendors.10 At the same 

 10 "A claim for breach of this implied warranty may be 

brought by an individual unit owner who can establish that (1) 

he purchased a new residential condominium unit from the 

builder-vendor; (2) the condominium unit contained a latent 
17

time, we recognized that "the protections afforded [to] 

purchasers of newly constructed condominium units by this 

implied warranty against latent defects in their own units may 

not be adequate to ensure the habitability of those units" 

because improper design, material, or workmanship that causes a 

defect in a common area might cause units to be uninhabitable or 

unsafe. Id. at 264-265. "To ensure that there is a complete 

remedy for a breach of habitability in the sale of condominium 

units, we conclude[d] that an organization of unit owners" --

such as a condominium trust -- "may bring a claim for breach of 

the implied warranty of habitability when there are latent 

defects in the common areas that implicate the habitability of 

individual units." Id. at 265.11

A developer of a condominium not only is subject to the 

 

defect; (3) the defect manifested itself to the purchaser only 

after its purchase; (4) the defect was caused by the builder's 

improper design, material, or workmanship; and (5) the defect 

created a substantial question of safety or made the condominium 

unit unfit for human habitation." Berish v. Bornstein, 437 

Mass. 252, 264 (2002).

11 To establish a claim for the breach of the implied 

warranty of habitability, the condominium trust must demonstrate 

that: "(1) it is an organization of unit owners as defined by 

G. L. c. 183A, § 1; (2) the common area of the condominium 

development contains a latent defect; (3) the latent defect 

manifested itself after construction of the common areas was 

substantially completed; (4) the defect was caused by the 

builder's improper design, material, or workmanship; and (5) the 

defect created a substantial question of safety as to one or 

more individual units, or made such units unfit for human 

habitation." Berish, 437 Mass. at 265-266.
18

implied warranty of habitability but also must comply with the 

minimum standards prescribed by the building code. See 780 Code 

Mass. Regs. § 114.1 (2017) ("It shall be unlawful for any 

person, firm[,] or corporation to erect [or] construct . . . any 

building, structure[,] or equipment regulated by [the building 

code] . . . in violation of any of [its] provisions . . .").

The purpose of the building code "is to establish the minimum 

requirements to safeguard the public health, safety[,] and 

general welfare . . . ." 780 Code Mass. Regs. § 101.3 (2017). 

The importance of adherence to the building code is evident from

the fact that, in certain circumstances, a building code 

violation may also result in liability under G. L. c. 93A,

pursuant to the Attorney General's regulation, 940 Code Mass. 

Regs. § 3.16(3) (1993), which provides, among other things, that 

an act or practice may constitute unfair or deceptive conduct 

within the scope of G. L. c. 93A if it "fails to comply with 

existing statutes, rules, regulations[,] or laws, meant for the 

protection of the public's health, safety, or welfare." 

See Klairmont v. Gainsboro Rest., Inc., 465 Mass. 165, 170 

(2013) (building code violation may constitute violation of 

G. L. c. 93A, § 2 [a], if underlying conduct is unfair or

deceptive, and occurs in trade or commerce). Importantly, where 

a claim under G. L. c. 93A, § 2 (a), arises from a building code 

violation, that claim cannot be waived because such a waiver 
19

could "do violence to the public policy underlying the 

legislative enactment." Canal Elec. Co. v. Westinghouse Elec. 

Corp., 406 Mass. 369, 378 (1990), quoting Spence v. Reeder, 382 

Mass. 398, 413 (1981). See Downey v. Chutehall Constr. Co., 88 

Mass. App. Ct. 795, 800-801 (2016) (waiver of building code 

requirements by homeowner does not preclude contractor's 

liability for G. L. c. 93A violation arising from building code 

violation "where there are possible consequences for the safety 

of the homeowner and others").

In sum, it is "clear [from] the acts of the Legislature 

[and] the decisions of this court," Miller, 448 Mass. at 683, 

that the public policy of Massachusetts strongly favors the 

safety and habitability of homes. In order to effectuate this 

public policy, we have consistently recognized the rights of 

individuals to obtain legal redress when their homes fail to 

meet minimum standards. These rights -- whether grounded in the 

implied warranty of habitability or in the building code as 

enforced through G. L. c. 93A -- are so vital that we have

consistently held that they cannot be waived.

This clear expression of public policy leads us to conclude 

that a condominium bylaw provision that effectively limits the 

ability of unit owners to obtain legal redress for violations of 

these rights must be carefully scrutinized to determine whether 

it contravenes that public policy. For example, if a bylaw were 
20

to provide that the unit owners waive all claims against the

developers for any defects in construction, we would surely

declare such a bylaw void as contravening public policy to the 

extent that it sought to waive the unwaivable claims based on

the implied warranty of habitability and G. L. c. 93A, § 2 (a). 

And we surely would not enforce such a sweeping waiver to the 

extent that it would shield the developers from claims of gross 

negligence. See Maryland Cas. Co. v. NSTAR Elec. Co., 471 Mass. 

416, 422 (2015), quoting Zavras v. Capeway Rovers Motorcycle 

Club, Inc., 44 Mass. App. Ct. 17, 19 (1997) ("[It is a] wellestablished principle of contract law . . . that, 'while a party 

may contract against liability for harm caused by its 

negligence, it may not do so with respect to its gross 

negligence'"). See also CSX Transp., Inc. v. Massachusetts Bay 

Transp. Auth., 697 F. Supp. 2d 213, 226 (D. Mass. 2010) ("[T]he 

[Supreme Judicial Court] would not enforce agreements purporting 

to require indemnification against gross negligence").

But the bylaw provision here, in practical effect, is even

more sweeping and more unfair than this hypothetical bylaw

provision. It is more sweeping because, as here, where the 

developers and their affiliates control more than twenty per 

cent of the units, this provision effectively prevents the 

trustees from bringing any claim in litigation against the 

developers for defects in construction or design, regardless of 
21

whether the claim is for a breach of the implied warranty of 

habitability, a violation of G. L. c. 93A, or any other claim 

(including gross negligence, fraud, or intentional misconduct).

And it is more unfair than the hypothetical bylaw provision

because its practical effect would likely not be immediately 

apparent to a reasonable prospective purchaser. If, under our 

hypothetical bylaw provision, unit owners were required to waive

all claims against the developers for defects in construction or 

design, a prospective purchaser -- if he or she had reviewed the 

bylaws in the registry of deeds -- would know that he or she 

would have no legal recourse against the developers for any 

defects in construction or design of the common areas and 

facilities of the condominium. A reasonable prospective 

purchaser, however, would not necessarily understand from the 

terms of § 1(o) the absence of legal recourse (or the severity 

of the impediments to legal recourse), because the prospective 

purchaser would not know how many condominium units the 

developers intended to retain, and for how long. Without this 

information, a prospective purchaser could not know whether 

§ 1(o) is simply a provision that requires consent from eighty 

per cent of the unit owners before initiating litigation, or a 

provision that, in effect, will shield the developers from any 

and all legal claims by the trustees.

In Barclay v. DeVeau, 384 Mass. 676, 682 (1981), we 
22

declared that "[a]bsent overreaching or fraud by a developer, we 

find no strong public policy against interpreting c. 183A, 

§ 10 (a), to permit the developer and unit owners to agree on 

the details of administration and management of the condominium 

unit" (footnote omitted). We conclude that it is overreaching 

for a developer to impose a condition precedent that, for all 

practical purposes, makes it extraordinarily difficult or even 

impossible for the trustees to initiate any litigation against 

the developers regarding the common areas and facilities of a 

condominium. Such a provision has all the same flaws as a 

waiver of liability provision -- which we would find void as 

contravening public policy -- but without the transparency of 

such a provision. We therefore conclude that § 1(o) of the 

bylaws, viewed in light of the totality of the circumstances, is 

void because it contravenes public policy.12

Conclusion. We vacate the judgment of dismissal of the 

verified complaint, order the grant of partial summary judgment 

on so much of the trustees' declaratory judgment claim as seeks 

a declaration that § 1(o) of the bylaws is void as contravening 

 12 Because we reach this conclusion, we need not (and do 

not) address the trustees' other arguments that § 1(o) of the 

bylaws denies access to the courts in violation of art. 11 of 

the Massachusetts Declaration of Rights, or that the provision 

invades the attorney-client relationship and privilege by 

requiring the trustees to provide unit owners with a draft of 

the complaint and an estimate of the legal fees and costs to be 

incurred in the proposed litigation.
23

public policy, and remand the matter to the Superior Court for 

further proceedings consistent with this opinion.

So ordered.