BEFORE YOU SUE CITY HALL
What Condominium Boards Need to Know about Municipal Immunity
When a condominium board or an individual unit owner discovers a construction defect that should have been caught before the building was ever occupied, the instinct is understandable: Someone should have seen this coming, and the town's building inspector was standing right there with the plans and the authority to stop the project.
Clients often come to counsel already convinced that the town shares the blame, sometimes more of the blame than the contractor who actually built the defective condition, and they want to know why their attorney is not filing suit against the city or town as well. This is often the point where an attorney has to deliver news the client does not want to hear. In Massachusetts, a condominium board or unit owner generally cannot recover from a municipality for failing to catch a construction defect during permitting or inspection, no matter how obviously inadequate that inspection turns out to have been in hindsight.
Why the Town Is a Different Kind of Defendant
Suits against a Massachusetts municipality are governed by the Massachusetts Tort Claims Act, G.L. c. 258. The Act allows a limited waiver of the town's traditional immunity from suit, but that waiver comes wrapped in a long list of exceptions in section 10 of the Act, several of which apply directly to the permitting and inspection process that produced the defect in the first place. Understanding why these exceptions exist, not just that they exist, helps explain to a frustrated client why the town is largely off the table as a source of recovery.
Permits and Inspections Are Specifically Immunized
Section 10(e) protects a municipality from claims based on the issuance, denial, suspension, or revocation, or the failure or refusal to issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar authorization. Section 10(f) goes further and separately protects the town from claims based on a failure to inspect, or an inadequate or negligent inspection, of property to determine whether it complies with any law, regulation, or code. Between these two provisions, the two most obvious theories a frustrated board wants to pursue, that the town should never have issued the permit and that the town should have caught the defect during inspection, are both squarely barred. Massachusetts courts have repeatedly explained the policy behind this. If a municipality could be held liable every time a building inspector missed something, it would effectively become an insurer of every construction project in town, which would either bankrupt the permitting process or push towns to stop inspecting altogether. The building code exists to protect the general public, not to create an individual duty running to each specific property owner who relies on it.
This immunity extends even to informal statements made by a building official. A property owner or a prospective buyer generally cannot build a claim around an inspector's offhand representation about a property's status, because Massachusetts law places the burden on property owners to independently confirm compliance rather than to rely on what an inspector says in passing.
Discretionary Function Immunity Reaches Further Than Permits and Inspections
Section 10(b) is broader, and boards are often surprised by how far it extends. It shields a municipality from claims based on the exercise, or the failure to exercise, a discretionary function or duty, whether or not the discretion involved was abused. This is not limited to the permitting counter. If a town's planning board approves a subdivision layout near the condominium, if the town chooses how to design or size a storm drain system that affects runoff onto the property, or if a town allocates limited resources toward one capital project instead of another, those are generally the kind of policy driven, judgment based decisions that section 10(b) protects, even when the outcome later looks like it contributed to water intrusion, drainage problems, or other conditions. Courts apply a two part analysis borrowed from federal case law to decide whether a given decision counts as discretionary in this sense, but the practical takeaway for boards is that discretionary function immunity is not confined to the inspection process. It can reach zoning and planning decisions and municipal infrastructure choices that indirectly affect the condominium long after the certificate of occupancy was issued.
The Contractor Remains the Real Target
Whether renting facilities to owners or third parties, boards should require the hosts to sign a Section 10(j) adds another layer that is particularly relevant to construction defect matters. It protects a municipality from claims based on a failure to prevent or diminish the harmful consequences of a condition caused by someone else, including a third party's conduct, unless the town itself originally caused the harmful condition. Courts have been careful to keep the exception for conduct the town originally caused narrow, so that it does not swallow the rule. In the construction defect context, this generally means that when the actual cause of the harm is a contractor's substandard workmanship, the town's alleged failure to catch that workmanship during inspection does not make the town the origin of the problem. The contractor, the developer, the design professionals, and their insurers remain the parties who can actually be held to account, and they are usually where the association's litigation resources are best spent.
Practical Guidance for Boards and Property Managers
A few habits help boards navigate these situations well before litigation is on the table. Resist the instinct to threaten the town with suit as a negotiating tactic, since that threat is rarely credible given these immunities, and it can damage the working relationship the association will continue to need with the same building department for future permits and inspections. Bring potential municipal claims to counsel early rather than after a demand letter has already gone out, since a genuine claim against a municipality carries its own strict notice requirements under the Act, including a written presentment to the town within a limited window, and a missed deadline can forfeit even a claim that might otherwise have survived the immunities above. Continue to comply with all applicable permit conditions, bylaws, and inspection requirements while a dispute is pending, since noncompliance rarely helps the association's position and can create separate problems. And keep thorough records of every permit, inspection report, and piece of correspondence with the town, not because it will likely support a claim against the municipality, but because that same documentation is often exactly what proves the underlying claim against the contractor, developer, or design professional who is actually responsible for the defect.
Municipal immunity can feel counterintuitive to a board that watched a defect go unnoticed for years, but understanding it early lets the association direct its energy, and its legal budget, toward the parties who can actually be held responsible.
If you have any questions regarding municipal law and your association’s rights, please contact Seth Barnett or any MEEB Attorney.