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.

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.

BERDO Requires Upgrades of Commercial Properties

Boston’s City Council origi­nally passed the Building Energy Re­porting and Disclosure Ordinance (BERDO) in 2013, to better un­derstand the role that larger residential and commercial buildings play in greenhouse gas emissions. BERDO has been periodi­cally amended since then, and it now im­poses significant reporting and emissions standards on Boston’s larger buildings.

BERDO requires that owners of non-resi­dential buildings with more than 20,000 square feet of floor area, and owners of resi­dential buildings with more than 15 dwell­ing units, annually report to the Boston Air Pollution Control Commission their energy and water usage, and their compliance with BERDO’s emissions standards. Private building owners’ annual reports must in­clude information on greenhouse gas emis­sions, building uses, use of renewable en­ergy certificates and sources of energy purchased for buildings.

In 2026, and every five years thereafter, building owners must provide independent third-party verifications of their reported data for the previous five years. Owners can require separately metered commercial ten­ants to submit the BERDO reports for their leased premises. The city itself is subject to a much less burdensome version of this re­porting requirement.

The Air Pollution Control Commission must disclose on the city’s website energy and water usage and emissions information for each building covered by BERDO. That commission has promulgated detailed regu­lations and policies for interpreting and im­plementing BERDO, along with a proce­dural framework for the ordinance.

In addition to the reporting requirements, beginning this year BERDO imposes green­ house gas emission standards on larger buildings. The standards require substantial reductions in those emissions every five years. However, buildings with 20,000 or more square feet but less than 35,000 square feet, and those with 15 to 34 dwelling units, do not have to comply with emissions stan­dards until 2031, reporting for 2030 emis­sions. By 2050, all covered buildings are ex­pected to produce zero emissions.

Option to Buy Renewable Energy Certificates

BERDO allows owners to mitigate green­house gas emissions by acquiring renewable energy certificates from non-greenhouse gas emitting sources, by purchasing energy from non-emitting renewable sources, or by making “alternative compliance payments.” The initial cost of those payments is $234 per metric ton of greenhouse gas, subject to periodic review.

The option for owners to make these pay­ments is, in essence, a small scale “cap and trade” program that places emissions limits on greenhouse gases but allows owners to exceed those limits by making payments. This amounts to a tax on greenhouse gas emissions, which incentivizes owners to minimize those emissions.

Alternative compliance payments are paid into the city’s Equitable Emissions In­vestment Fund, which is dedicated to pro­gressive initiatives such as improving and promoting affordable housing, economic in­clusion for minorities and women, work­force development training programs, com­munity housing ownership and renewable energy infrastructure. Funds are also avail­able for improving air quality and tenants’ indoor environments.

BERDO establishes a review board with significant power. The review board may approve individual compliance schedules for owners, as an alternative to the pre­scribed emissions standards. It can approve hardship compliance plans, allowing less stringent emissions standards for buildings with historic designations, affordable hous­ing refinancing timelines, long-term energy contracts, or financial hardships. The re­view board also considers applications for expenditures from the Equitable Emissions Investment Fund.

Board Responsible for Enforcement Decisions

Perhaps most importantly, the review board is empowered to enforce BERDO’s mandates. It can assess fines and seek court-ordered injunctions against noncom­pliant private building owners and commer­cial tenants.

For noncompliance of reporting require­ments, the fine is up to $150 or $300 per day, depending on building size. Fines for non­compliance with emissions standards are up to $300 or $1,000 per day, again depend­ing on building size. If a third-party verifier finds a discrepancy in an owner’s reporting, the owner is subject to a fine of between $1,000 and $5,000. The review board may grant reductions or waivers of fines. Own­ers can appeal fines assessed against them to the Air Pollution Control Commission.

It is noteworthy that city-owned proper­ties, including some 10,000 housing units owned or managed by the Boston Housing Authority, are excused from the review board’s fines and injunctions. Without the threat of review board penalties, the city has less incentive than private property owners to comply with BERDO. It remains to be seen if the city will fully comply with BERDO’s requirements out of a sense of fairness and civic duty.

Boston has a land area of about 48 square miles, with roughly 675,000 residents. For a planet with over 8 billion people, BERDO cannot provide meaningful climate change mitigation by itself, but one has to start somewhere.

Download the article as seen in Banker & Tradesman on June 30, 2025. Learn more about Christopher R. Vaccaro.