Young parents buying newly constructed homes have many concerns: construction quality, neighborhood safety, local public schools and their financial ability to manage mortgage payments and carrying costs.
Whether their builder may have knowingly spread loam infused with an invasive weed and glass and metal debris upon their property, should not be among them. But this happened to a family that bought a new home in Pepperell.
Peter Cricones acquired a vacant gravel pit in 2015 to develop a residential subdivision. He used loam from various sources for his project, including some remaining from the gravel pit.
Cricones’ excavation contractor saw that this loam contained Japanese knotweed, a highly invasive species that dominates yards unless its rhizomes and root structure are eradicated. The excavator warned Cricones not to combine this loam with the rest, but Cricones disregarded this advice and used knotweed-infested loam for the subdivision.
Joseph and Kim Trites bought a home from Cricones in 2017, unaware of the unseen knotweed contamination. Before long, knotweed took over their yard, foundation and areas beneath their deck, and erupted through their paved walkways. The soil in their lawn also harbored glass and metal debris, rendering their yard unsafe.
Complaints Relations Quickly Turn Hostile
After Cricones made fruitless efforts to remove the knotweed, relations between the parties grew hostile. The Triteses posted warning signs about the knotweed infestation, and Cricones countered with threats and vulgar gestures.
In 2018, the Triteses sued Cricones in Superior Court for nuisance, negligence, breach of the implied covenant of good faith and fair dealing and unfair and deceptive practices in violation of Massachusetts General Laws Chapter 93A.
After the trial, Cricones moved for a directed verdict in his favor on the nuisance and implied covenant claims. The trial judge denied the motion and sent those claims to the jury.
The jury found Cricones liable for nuisance and breach of the implied covenant of good faith and fair dealing, and awarded the Triteses $186,000. In addition, the judge ruled that Cricones violated Chapter 93A, and awarded the Triteses the same $186,000 as the jury, plus the Triteses’ attorney’s fees and costs.
The judge declined to award the Triteses multiple damages, after finding that Cricones’ conduct was not willful and knowing.
Implied Covenant Claim Overruled
Cricones appealed, and the Appeals Court rendered its judgment on his appeal last February.
The Appeals Court’s decision first addressed the jury’s verdicts against Cricones for nuisance and breach of the implied covenant. It noted that a nuisance claim must be based on an invasion of an owner’s property rights, originating from someone else’s property.
Because the knotweed infestation and the glass and metal debris existed on the Triteses’ property, and did not emanate from other property, the court ruled that the Triteses could not successfully maintain their nuisance claim.
The court also reversed the jury’s verdict against Cricones for breach of the implied covenant of good faith and fair dealing.
Massachusetts courts recognize this implied covenant in every contract. The implied covenant prohibits contracting parties from taking actions that, although not expressly addressed in a written contract, would effectively prevent other contracting parties from realizing the benefits of their bargains.
The court noted that the implied covenant cannot operate beyond the scope of the written contract, and the Triteses’ contract with Cricones did not require him to disclose the soil contaminants.
The court overruled the verdict against Cricones on that claim, stating that purchasers of new homes should instead rely on express warranties and disclosures in their contracts, the implied warranty of habitability as to construction defects and protections under Chapter 93A.
Developers Subject to Home Sales Disclosures
The court next addressed the Chapter 93A judgment against Cricones.
It observed that Chapter 93A does not apply to isolated sales of private homes, but the statute does apply to sales by developers like Cricones.
When developers fail to disclose known material defects in a property, their non-disclosure can violate Chapter 93A, even if their contracts with homebuyers do not require disclosure. Developers cannot be held liable under Chapter 93A for non-disclosure of defects unknown to them, or for defects that homebuyers are aware of.
But in the Triteses’ case, Cricones knew about the soil contamination, and the Triteses did not, so the court upheld the Chapter 93A judgment against Cricones.
While Cricones prevailed on his appeal of the nuisance and implied covenant judgments, the court upheld the $186,000 Chapter 93A judgment against him, leaving Cricones where he was before he appealed, but with a bigger legal bill to pay.
Download the article as seen in Banker & Tradesman on July 28 2025. Learn more about Christopher R. Vaccaro.