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Commercial Real Estate, Real Estate

The Patient Capital Behind Many Affordable Housing Projects

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Quasi-Public CEDAC Has Helped Finance 455K Homes

The Community Economic De­velopment Assis­tance Corporation, or CEDAC, was created by the Massachusetts Leg­islature nearly 50 years ago, to expend public money on technical as­sistance for community development corpo­rations and other organizations in economi­cally distressed target areas.

CEDAC’s mission was later expanded to provide both financing and technical assis­tance to eligible organizations committed to preserving and creating affordable housing for low- and moderate-income individuals. CEDAC’s affiliate, the Children’s Investment Fund, is engaged in improving early child­hood education and out-of-school program facilities for children from low- and moder­ate-income families.

CEDAC can be described as a quasi-gov­ernmental corporation that invests in non­profit organizations committed to promoting a better quality of life for individuals and fam­ilies overlooked by the free-market economy.

CEDAC’s role in preserving and creating affordable and supportive housing is expected to grow over the next few years, in part because of the Affordable Homes Act of 2024.

Source of Pre-Development Funds

Under CEDAC’s enabling legislation, only “eligible organizations” can qualify for its technical and financial assistance. Eligible organizations are defined to include CDCs and nonprofits committed to improving eco­nomic well-being of target areas, stabilizing and expanding employment and investment in those areas and preserving and creating affordable housing.

CEDAC provides those organizations with bridge pre-development and acquisition fi­nancing to support their projects before they close on construction financing. Its programs are also directed toward creation of supportive housing for elders, veterans, homeless individuals and families and dis­abled persons, as well as preservation of af­fordable housing units whose affordability limitations are scheduled to expire.

Working on behalf of the Massachusetts Executive Office of Housing and Livable Communities, CEDAC also administers sev­eral sources of “patient” financing – that is, permanent loans with distant maturity dates, typically at 0 percent interest.

 

To obtain such financing, eligible organi­zations are expected to commit to long term affordability restrictions benefiting low- and moderate-income individuals. Some sources also have specific requirements to serve in­dividuals with disabilities, homeless house­holds or other vulnerable populations, while offering supportive services

The results of CEDAC’s efforts are note­worthy. Its financing and technical assis­tance programs have contributed to the pro­duction or preservation of over 455,000 dwelling units in Massachusetts.

Works on Behalf of State

For a typical CEDAC predevelopment or acquisition loan structure, CEDAC can pro­vide an acquisition loan for up to 100 percent of appraised value, with predevelopment fi­nancing to cover other soft costs. These loans often have a two- or three-year term.

CEDAC’s permanent financing sources involve various forms of supportive hous­ing, and must be awarded by EOHLC, usu­ally in one of the several competitive fund­ing rounds held annually.

Permanent loans are non-interest bear­ing, and in most cases are for 30-year terms without periodic principal payments. In ex­change for these benefits, nonprofits agree to sign and record an affordable housing re­striction on their properties with a 30-year term.

In consultation with EOHLC, CEDAC is also willing to extend loan maturity dates beyond the initial 30-year term, as long as the nonprofit continues to comply with pro­gram requirements. On behalf of EOHLC, CEDAC has overseen the financing of over 22,000 supportive housing units.

CEDAC’s affordable housing restriction requires nonprofit developers to lease resi­dential units only to lower-income or dis­abled individuals. Social service programs must be maintained for residents of sup­portive housing. Units are made available through a marketing plan acceptable to CEDAC, and CEDAC is involved in assuring that residents are income qualified for the affordable and supportive units.

EOHLC reserves a right of first refusal to purchase the property if the nonprofit wants to sell it later. EOHLC also reserves an op­tion to purchase the property at its then-cur­rent appraised value when the affordable housing restriction expires. CEDAC will subordinate its mortgage to institutional lenders that agree to honor EOHLC’s rights under the affordable housing restriction.

CEDAC’s most recent annual report, pub­lished as of the end of 2024, shows impres­sive results.

59 Projects in One Year

During that year alone, CEDAC loaned or granted, including participations, over $44 million in financial assistance on 59 projects with 2,315 dwelling units. Its affiliate, Chil­dren’s Investment Fund, also made available another $2 million for childcare projects.

CEDAC’s role in preserving and creating affordable and supportive housing is ex­pected to grow over the next few years, in part because of the Affordable Homes Act of 2024.

The AHA authorized the state treasurer to issue up to $5.16 billion in bonds to fi­nance government funding for housing proj­ects. Much of the authorized funds will be distributed through EOHLC, which, in turn, will rely on CEDAC and other quasi-public corporations to administer funding for qual­ified projects.

With a proven record of accomplish­ments, and financial support through the AHA, CEDAC is poised for continued suc­cess in 2026.

Download the article as seen in Banker & Tradesman on November 24, 2025. Learn more about Christopher R. Vaccaro.

Commercial Real Estate, Real Estate

Bane of Landlords Threatens to Reappear on Ballot

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Latest Rent Control Bid Still Faces Hurdles

To residential land­lords in Massa­chusetts, rent con­trol proposals are like Freddy Krueger from the Nightmare on Elm Street horror movie franchise – a relentless villain that cannot be subdued, and continues to terrorize victims in an endless series of sequels and remakes.

The latest remake is an initiative petition to “Protect Tenants by Limiting Rent Increases,” promoted by Homes for All Massachusetts, a coalition of housing justice groups.

Its petition would repeal the Massachu­setts ban on rent control, enacted by refer­endum in 1994, and replace it with a state­wide cap on residential rent increases.

The group announced last week that it’s gathered 124,000 signatures as it seeks to get its idea on the 2026 ballot. State election officials must still review the signatures to confirm their validity.

What’s the Latest Proposal?

The current WEEI studios in Brighton would be demolished to make way for a 330-unit apartment complex in a project by Nordblom Co.

Annual increases for most dwelling units would be limited to the lesser of the annual Consumer Price Index (CPI) increase, or 5 percent. Owner-occupied buildings with four or fewer units would be exempt, as would units regulated by public authorities, units rented to transient guests for less than 14 days and units operated for educational, religious or nonprofit purposes.

Units that received residential certifi­cates of occupancy within the prior 10 years would also be exempt. Rents in effect as of Jan. 31, 2026, would serve as the base for determining limits on annual increases.

Landlords who violate the law would be subject to enforcement suits under the Mas­sachusetts consumer protection law, facing possible liability for treble damages and at­torney’s fees.

Boston’s Proposal Pales in Comparison

Given the housing shortage in Massachu­setts, efforts to improve housing stability for lower-income families and individuals are understandable.

Some policymakers would impose rent control to achieve that goal. Indeed, sup­port for rent control can be good politics for elected leaders in communities where many voters are tenants worried about housing costs.

Boston Mayor Michelle Wu seemed aware of this in 2023, when she promoted a home rule petition for the state Legislature to exempt Boston from the state-wide ban on rent control.

Her home rule petition would have al­lowed Boston to cap annual rent increases at the lesser of the CPI increase plus 6 per­cent, or 10 percent. Dwelling units with less than 15-year-old certificates of occupancy would be exempt.

The Boston home rule petition stalled out in the Legislature.

If Homes for All’s initiative petition be­comes law, it would be far more restrictive than the Boston home rule petition, which is benign in comparison.

The Homes for All petition would also impose rent control throughout the entire commonwealth, instead of only municipali­ties that choose to adopt rent control.

Developers May Shun Massachusetts

If economists can agree on one thing, it is that rent control’s unintended conse­quences outweigh its benefits.

Rent control does not increase housing availability. It may instead reduce the sup­ply of quality housing because it impedes landlords’ abilities to cover rising carrying costs and replacement expenditures with rent increases.

Housing developers may decide to build out of state, wary that newly constructed Massachusetts properties will eventually fall under rent control.

Tenants of controlled dwellings are less likely to seek other housing when their dwellings are too big, too small or too far from their workplaces.

Rent control enforcement requires bu­reaucracies to adjudicate landlord requests for rent increases and to punish landlords that violate the law.

Lower property tax revenues for municipal­ities under rent control are another expected result. Perhaps the only beneficiaries of rent control are residential tenants lucky enough to have apartments when controls take effect.

A History of Unfair Results

Rent control does not necessarily help lower-income individuals as intended.

Opponents of rent control gleefully point out that when rent control was in effect in Boston, Cambridge, and Brookline more than 30 years ago, Supreme Judicial Court Justice Ruth Abrams, Cambridge Mayor Ken­neth Reeves, Prince Frederik of Denmark and as hundreds of well-heeled professionals were living in rent-controlled apartments.

The status of Homes for All’s rent control initiative remains uncertain.

It received a boost last September when Massachusetts Attorney General Andrea Campbell certified the initiative as a poten­tial ballot question for the November 2026 election.

The initiative needed to gather valid sig­natures from about 75,000 registered voters by Dec. 3, then approval by the state Legis­lature by May 2026. If the Legislature does not approve the initiative, it can still be placed on the ballot if an additional 12,429 valid signatures are collected.

Landlords, tenants and their respective advocacy groups, will be watching how things develop with the initiative. Homes for All is unlikely to gain approval from a Legislature that let Boston’s home rule peti­tion languish.

If the initiative makes the November bal­lot, prepare for a flood of political advertise­ments promoting both sides of the debate next fall..

Download the article as seen in Banker & Tradesman on November 24, 2025. Learn more about Christopher R. Vaccaro.

Commercial Real Estate, Real Estate

Soured Relationship Leads to Defamation Lawsuit Against Architect

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Contractor Objected to Negative Comments on Performance

 

The Massachusetts Appeals Court is­sued a noteworthy decision this month in B.C. Construction Co., Inc. v. Johnson Roberts Associates, Inc., a law­suit between a general contractor and architect.

The city of Everett awarded a construc­tion contract to B.C. Construction Co. Inc. in 2013 to renovate and expand its public li­brary. B.C. submitted change orders during construction, increasing the project’s cost. The architect, Johnson Roberts Associates Inc., settled an unrelated dispute involving an underground wall with Everett, by offer­ing a $20,000 credit.

B.C. and JRA had never worked on a project together before. Somehow B.C.’s change orders and JRA’s dispute with Ever­ett damaged their relationship.

JRA’s antipathy toward B.C. influenced the bidding process on subsequent munici­pal projects in Dracut and Cambridge.

Asked to Consult in Dracut

Dracut asked JRA and a project manage­ment firm in 2019 to evaluate construction bids for a fire station project. B.C. delivered the lowest bid. Massachusetts statutes re­quire that municipal construction contracts be awarded to the lowest responsible bidder.

However, JRA raised doubts about whether B.C. was a “responsible” bidder, apparently based on JRA’s experience with B.C. in Everett, and other negative informa­tion involving B.C. The project manager asked the Massachusetts attorney general’s office whether Dracut could reject B.C.’s lowest bid.

Massachusetts statutes require that municipal construction contracts be awarded to the lowest responsible bidder.

The AG’s office recommended that Dra­cut gather client reviews and allow B.C. to address any negative reviews. It advised that after taking these steps, Dracut could legally reject B.C.’s bid if B.C. was not “re­sponsible.” JRA and the project manager obtained and summarized B.C.’s project ref­erences for the town.

After Dracut’s building committee dis­cussed negative references with B.C.’s pres­ident, Dracut rejected B.C.’s bid.

When budgeting issues delayed its project, Dracut conducted a second round of bidding six months later. B.C. again submitted the lowest bid. JRA again summarized B.C.’s proj­ect references in a report, mentioning poten­tial litigation involving B.C., an architect and a municipality regarding a different project.

JRA again declined to recommend B.C. for the project, and Dracut again rejected B.C.’s bid.

Second Rejection Leads to Lawsuit

Meanwhile, B.C. submitted a bid to con­struct a fire station in Cambridge, where JRA served as architect.

B.C.’s bid was among the lowest, but a JRA principal warned the Cambridge proj­ect manager that in JRA’s experience, B.C. was among the worst general contractors that JRA had ever worked with. JRA also re­ported that B.C.’s recent projects may have required mediation and litigation to be com­pleted. Cambridge rejected B.C.’s bid.

Perceiving JRA as an obstacle, B.C. sued JRA in Superior Court for intentional inter­ference with advantageous business rela­tions and defamation. JRA moved for sum­mary judgment dismissing B.C. suit without a trial, arguing that the undisputed facts did not show JRA to be liable for any wrongful actions.

The Superior Court agreed with JRA and dismissed the suit. B.C. appealed.

The Appeals Court first discussed B.C.’s claim against JRA for intentional interfer­ence with advantageous business relations. To prevail on that claim, B.C. had to prove that JRA knowingly and improperly induced Dracut and Cambridge to forgo business re­lations with B.C.

Not Liable for Offering Honest Advice

The court focused on whether JRA’s mo­tives were improper. After observing that JRA, as project architect, had offered hon­est advice within the scope of its services, the court upheld the Superior Court’s ruling that JRA was not liable for intentionally in­terfering with B.C.’s business relationships during the bidding processes.

The court next considered B.C.’s defama­tion claim against JRA. To prevail on that claim, B.C. had to prove that JRA published a false and defamatory statement about B.C., the statement was not protected by any privilege, and B.C. suffered damages as a result.

JRA argued that its negative statements about B.C. were privileged. Massachusetts courts recognize a “conditional privilege” protecting publication of defamatory mate­rial when publication is reasonably neces­sary to protect legitimate business interests.

This conditional privilege is available where the author of a defamatory statement and its recipient share a common interest, and the statement is intended to protect that interest.

However, the privilege does not excuse malicious statements or knowing false­hoods. The court noted that B.C.’s evidence was insufficient to prove that JRA’s negative statements about B.C. lacked good faith or were so egregious that JRA should be liable for defamation.

Accordingly, the court upheld the Superior Court’s dismissal of B.C.’s defamation claim.

This decision shows that Massachusetts courts are reluctant to hold defendants lia­ble for intentional interference or defama­tion when defendants act in good faith and without obvious malice. This is particularly true in the governmental bidding context, where public agencies depend on candid opinions from independent consultants.

Download the article as seen in Banker & Tradesman on October 27, 2025. Learn more about Christopher R. Vaccaro.

Commercial Real Estate, Real Estate

Woods Hole Project Illustrates Coastal Permitting Challenges

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Marine Researchers Secure Dock Upgrade

The deepwater port at Woods Hole on Cape Cod has hosted research ves­sels for the Woods Hole Oceanographic Institu­tion (WHOI) for nearly 100 years.

WHOI has a world­wide reputation for oceanography. Its Iselin Marine Facility, located in the middle of Woods Hole village, is the homeport for WHOI’s ocean-going research vessels and underwater vehicle operations. The facility is also a hub for developing and testing new technologies, and an important contributor to the regional blue economy.

Unfortunately, the facility’s 57-year-old dock is nearing the end of its useful life, while facing threats from rising sea levels and coastal erosion.

Many Permits, Years of Review

WHOI determined several years ago that repairs and maintenance to the existing dock, without major capital improvements, were not economically feasible, so the insti­tute developed plans to replace the facility with a new Complex for Waterfront Access to Exploration and Research (CWATER).

Woods Hole Oceanographic Institution waterfront is a hub for oceanography and a major contributor to the regional blue economy.

The project will include a redesigned and rebuilt pile-supported dock, bulkhead re­placement, dredging, new facilities for ro­botic vessels and a new building hosting labs and shops focused on water-dependent activities. CWATER will provide WHOI with a more resilient marine facility designed to withstand anticipated sea level rises and se­vere weather events for the next 80 years.

CWATER will impact several coastal re­source areas that are subject to state regula­tion. Therefore, WHOI was required to sub­mit an environmental notification form to the state Executive Office of Energy and Environmental Affairs for the project under the Massachusetts Environmental Policy Act (MEPA).

WHOI enjoyed an early success in the permitting process in 2020, when the secre­tary determined that WHOI could proceed without filing an environmental impact re­port for CWATER under MEPA.

However, WHOI still needed several per­mits for CWATER, including a Chapter 91 waterways license and a water quality cer­tificate from the Massachusetts Department of Environmental Protection, a wetlands order of conditions from the Falmouth Con­servation Commission, authorization from the U.S. Army Corp of Engineers, a National Pollutant Discharge Elimination System permit from the U.S. Department of Envi­ronmental Protection and federal consis­tency review from the Office of Coastal Zone Management.

WHOI was also required to consult with state and federal agencies to minimize the project’s impacts on nearby eelgrass mead­ows.

Waterfront permitting in Massachusetts is not for the faint of heart.

Community Feedback Built Consensus

After years of public hearings, neighbor­hood meetings and design changes to ac­commodate engineering challenges and pub­lic and governmental input, WHOI obtained its final permits for CWATER this year.

WHOI notably secured its permits with­out having to endure litigation or appeals. This success would not be possible without excellent public relations, and local appre­ciation for WHOI’s mission and reputation.

Part of WHOI’s strategy involved creation of a community advisory committee to pro­vide a mechanism for communication and feedback. WHOI also co-founded Resilient Woods Hole, which helps its Woods Hole neighbors to better understand how infra­structure improvements along Wood Hole’s coast are essential to protecting the village from the effects of climate change.

$100M Pier Project

However, one major challenge remains for CWATER – obtaining financing for a project that is expected to take seven years to complete at a cost of over $100 million.

WHOI is a private nonprofit that is not di­rectly tied to any governmental entities or public universities, so it depends heavily on federal and state grants and philanthropy. WHOI initially obtained a few million dol­lars in state grants for CWATER, and it also received some private grants for design and permitting. Construction can now begin in earnest.

WHOI had hoped to obtain major funding from the federal government, but those sources were largely eliminated from the federal budget this year.

For now, CWATER is expected to move forward in phases, as funding becomes available. The first phase of the project, scheduled to begin next year, will involve the construction of a robotics vehicle port with funds from the U.S. Navy. Finding reli­able sources of funding for later phases re­mains a challenge.

“CWATER will be an advanced, resilient facility that will provide access to the sea for our scientists, engineers, seafarers and technicians for the rest of this century,” Rob Munier, WHOI’s vice president of marine fa­cilities who has quarterbacked this project since its inception, told me. “It will serve as a classroom for future generations of oceanographers and an incubator for new technologies, ensuring continued leadership in our basic understanding of the ocean and enabling the discovery of solutions to criti­cal problems facing the Earth system – and humanity. The process of delivering CWA­TER is complex and we have achieved the critical ‘shovel-ready’ milestone. Now it is time to get wet!”

Download the article as seen in Banker & Tradesman on September 29, 2025. Learn more about Christopher R. Vaccaro.

Commercial Real Estate, Real Estate

SJC Limits Landlords’ Use of Security Deposits

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Court Favors Tenant in Dispute Over Cleaning Requirement

The Massachusetts Supreme Judicial this month ruled on whether a residen­tial landlord properly used a tenant security deposit to offset the landlord’s cost of clean­ing a vacated dwelling.

The Massachusetts security deposit statute imposes strict requirements on residential landlords. Security deposits cannot exceed one month’s rent. Landlords must give resi­dential tenants written receipts for security deposits, with sworn statements of condition.

Security deposits must be held in special bank accounts and tenants are entitled to yearly notices identifying banks holding de­posits, with account numbers and annual in­terest payments on their security deposits.

A recent Supreme Judicial Court ruling favored tenants in a dispute over a lease requirement to hire professional cleaners when moving out.

Residential landlords often inadvertently violate the statute and egregious violations can result in judgments requiring landlords to pay triple the security deposit to tenants plus attorney’s fees.

Landlords can only deduct from security deposits for unpaid rent and water charges, unpaid real estate taxes and reasonable amounts necessary to repair damage caused to the dwelling unit but specially excluding “reasonable wear and tear.” Landlords who deduct from security deposits for damage must provide tenants with sworn state­ments with supporting documentation.

A major Los Angeles-based residential landlord recently learned in Peebles v. JRK Property Holdings Inc., that even sophisti­cated landlords can get tripped up by the statute.

Tenant Challenges Lease Requirements

JRK Property Holdings uses its own stan­dard form of residential lease. Its lease re­quired tenants to paint and professionally clean their apartments, including carpet cleaning, at the end of their leases.

JRK’s lease authorized it to apply specific charges for the cost of painting, carpet cleaning and cleaning specific items such as bathroom and kitchen fixtures, doors, win­dows and cabinets. It reserved the right to deduct painting and cleaning charges from tenant security deposits if tenants failed to satisfy these obligations.

When one of its tenants, Branda Peebles, vacated her apartment without using pro­fessional cleaning services, JRK deducted $115 from her security deposit.

Peebles filed a putative class action law­suit against JRK in Suffolk Superior Court for an alleged violation of the security de­posit statute, seeking triple her security de­posit. She claimed that JRK’s cleaning costs arose from “reasonable wear and tear” on the apartment and therefore JRK’s deduc­tion from her security deposit violated the statute.

Federal Judge Returns Case to SJC

Because JRK is incorporated and head­quartered in California, it was able to re­move the case to federal court, but the case returned to Massachusetts when the federal judge certified questions regarding the Mas­sachusetts security deposit statute to the Supreme Judicial Court.

The federal court asked the SJC to an­swer, first, whether a landlord deducting the cost of painting, carpet repair and simi­lar refurbishments from a tenant security deposit, violates the security deposit stat­ute; and second, whether a clause in a lease allowing the landlord to deduct the cost of professionally cleaning violates the statute.

The SJC first considered whether charging a tenant for painting and carpet cleaning vio­lated the statute. Peebles argued that paint­ing and carpet cleaning address reasonable wear and tear instead of damage to the prem­ises, so the charges were not deductible.

The SJC noted that the statute does not define the term “reasonable wear and tear.” Accordingly, whether or not damage consti­tutes reasonable wear and tear is fact-spe­cific to each case, depending on the condi­tion of the premises at the outset of the lease, the use of the premises, the expected deterioration of the premise because of such use and the length of the tenant’s oc­cupancy.

The SJC declined to set a firm rule that all damage requiring painting or cleaning is reasonable wear and tear, but noted that normal use of leased premises will result in gradual deterioration and security deposit deductions for such reasonable wear and tear violate the statute.

The SJC next determined that JRK’s lease provision requiring tenants to profession­ally clean their premises at the end of the lease, under threat of security deposit de­ductions, is in effect a requirement that ten­ants forfeit security deposits to pay for rea­sonable wear and tear.

The SJC ruled that the lease provision vi­olates the statute and is void and unenforce­able. Based on the SJC’s decision, the fed­eral court is likely to rule in favor of Peebles and it might require JRK to pay triple her se­curity deposit plus her attorney’s fees.

Peebles filed her Superior Court suit in 2019. Her case spent several years working its way through Superior Court, federal court and the SJC.

The possibility remains that Peebles’ case will be certified as a class action, which will further JRK’s legal entanglements and risk. This is a lot of exposure for JRK over a $115 cleaning charge.

Download the article as seen in Banker & Tradesman on August 25, 2025. Learn more about Christopher R. Vaccaro.

Commercial Real Estate, Real Estate

Invasive Weed Trips Up Builder in Pepperell

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Appeals Court Favors Homeowners in Consumer Protection Lawsuit

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.

Japanese knotweed. Under Massachusetts Chapter 93A, developers are liable for failure to disclose known defects to homebuyers.

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.

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