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Berish v. Bornstein6/28/2002
or demand. If the date of the breach or demand is not established, interest shall be added by the clerk of court, at such contractual rate, or at the rate of twelve per cent per annum from the date of the commencement of the action."
"Establishing the date of breach or demand is a determination for the trier of fact, and, where trial has proceeded before a jury, neither the judge nor an appellate court can make such a determination." Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125 (1986).
Here, the master ruled that Bornstein breached his contractual obligation set forth in the declaration of trust to issue statements to the nominee trust for the share of common expenses that it owed for the units that it owned. The master considered and rejected Bornstein's argument that, because the unit owners' association never issued any statements to the nominee trust, the mechanism to trigger a breach of the obligation to pay was not activated. However, the master decided that Bornstein and the other original trustees controlled this mechanism, and therefore "it would be fallacious to conclude that the precondition to a breach never had occurred." He concluded that "Bornstein's failure to render statements to his Nominee Trust was the equivalent of his having rendered such statements and then having failed to pay."
Based on this finding, the trustees are entitled to interest from the date of breach.
4. Conclusion.
In light of our holding that Massachusetts recognizes a claim for breach of the implied warranty of habitability (Count X), both as to condominium unit owners and organizations of unit owners, and that the motion judge erred in dismissing the trustees' negligence claims (Counts I and II), we vacate the judgments of dismissal and remand those claims for further proceedings consistent with this opinion. We also remand the breach of contract claim (Count XII) for the calculation of the interest owed to the trustees. We affirm the judgment adopting the master's amended report as to the breach of fiduciary claims (Counts XI, XIV-XVI), violation of G.áL. c.á93A (Count XIII), and breach of contract claim (Count XII).
So ordered.
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