Berish v. Bornstein

The plaintiff trustees of the Trust of the Cotuit Bay *254Condominium (unit owners’ association)5 commenced an action against the developer of the Cotuit Bay Condominium (condominium development), Stuart Bomstein (Bomstein); the original trustees of the unit owners’ association, including Jamila, Morris, and Paul Bomstein (Bomstein trustees)6; and the general contractor of the condominium development, Cotuit Bay Condominium, Inc. (CBC).7,8 In their complaint, the trustees alleged, inter alla, that Bomstein breached the implied warranty of habitability by improperly constructing the condominium development, and that he and the Bomstein trastees breached various duties by failing properly to manage the unit owners’ association and care for the common areas while they were original trustees.9

After thirteen years of litigation, judgment was entered in the Superior Court in the trustees’ favor on breach of fiduciary duty and breach of contract claims. Both parties have appealed. We granted the trustees’ application for direct appellate review. The principal issue we decide is whether a warranty of habitability is implied in the sale of a newly constructed condominium unit or in the transfer of newly constructed common areas to an organization of unit owners. We conclude that such a warranty is implied in both types of transactions.

1. Factual background. In addition to being an original trustee of the unit owners’ association, Bomstein was the principal beneficiary and trustee of the Cotuit Bay Condominium Trust *255(nominee trust),10 which owned both the land in Mashpee on which he built the condominium development11 and all of the condominium units until they were individually sold. Constructian of the condominium development began in 1981, and as the units were completed and sold between 1981 and 1985, Bomstein amended the master deed to expand the condominium development from the thirty-two original units to a total of sixty-two units.

On October 30, 1981, the unit owners’ association was created. The declaration of trust, which sets out the trustees’ rights and responsibilities, conveyed “[a]ll rights and powers in and with respect to the common areas and facilities of [the condominium development]” to the trustees “to exercise, manage, administer and dispose of the same and to receive the income therefrom for the benefit of the owners of record.” It also required that the trustees set and assess common expenses for the upkeep of the common areas as follows:

“At least thirty days prior to the commencement of each fiscal year of this trust and within thirty days after the execution hereof with respect to the portion of a fiscal year then remaining, the Board of Tmstees shall estimate the common expenses expected to be incurred during such fiscal year together with a reasonable provision for contingencies and reserves, and after taking into account any undistributed common profits from prior years, shall determine the assessment to be made for such fiscal year. The Trustees shall promptly render statements to the Unit Owners for their respective shares of such assessment, according to their percentages of interest in the common areas and facilities (or 25% thereof with respect to unoccupied Units owned by Declarant as above provided), and such statement shall, unless otherwise provided herein, be due and payable within thirty days after the same are rendered.”

*256While Bomstein was a trastee of the unit owners’ association, the nominee trust owned a number of unsold units on which it should have paid $36,223 in annual assessments. It was not billed for, nor did it pay, those assessments to the unit owners’ association. However, during this same period of time, CBC provided all of the landscaping and maintenance at the condominium development and paid a substantial portion of the condominium development’s operating expenses, including the insurance, electric, and telephone bills. In total, CBC expended $69,293 for the benefit of the condominium development, $33,073 more than the nominee trust would have paid for the units that it owned.

Between 1982 and May, 1985, serious problems were identifled in the common areas of the condominium development, including problems with the sliding doors, chimneys, skylights, decks, and roofs. None of the skylights, chimneys, or sliding doors had been installed with flashing, as required by the State building code (code), resulting in water leakage and damage to the sheet rock and other materials on the inside of the individual units. In addition, none of the outside decks was constructed in accordance with the code, causing their supporting columns to deteriorate prematurely and rot. No action was undertaken by Bomstein and the other original trustees of the unit owners’ association to cure these and other problems.12

Pursuant to the declaration of trust, the original trustees of the unit owners’ association had staggered terms that expired between 1982 and 1985.13 As the terms of these trustees expired, the vacancies on the board of the unit owners’ association were presumably filled pursuant to the provisions of the declaration of trust. Bomstein, the last remaining original trustee, completed his term as trustee in luly, 1985.

2. Procedural history. The trustees filed their complaint in the Land Court in February, 1987, naming Bomstein as the sole *257defendant. They set forth claims for misrepresentation, failure properly administer the unit owners’ association, and failure to pay common charges for individual units that the nominee trust owned. The trustees filed an amended complaint adding a claim for violation of G. L. c. 93A, and a second amended complaint adding negligence claims against CBC and various subcontractors who had built the condominiums. In April, 1988, a judge in the Land Court ordered the case transferred to the Superior Court.

In October, 1988, the trustees filed their third amended complaint, which set forth the following claims against Bomstein:

(1) negligence, individually and as a trustee of the unit owners’ association, based on his failure to exercise due care in the design and construction of the condominium (Count I);

(2) misrepresentation, individually, based on statements about the condominium that the unit owners relied on to their detriment (Count IX);

(3) breach of the implied warranty of habitability (Count X);

(4) breach of fiduciary duty, individually, for his failure to ensure that the condominium units were properly constructed, that all known deficiencies were addressed, that “all that had been represented was provided,” and adequately, duly, and competently to administer the condominium (Count XI);

(5) breach of contract and violation of the Massachusetts Condominium Act, individually and as a trustee of the unit owners’ association, for failure to pay the plaintiff trastees the proportionate share of common expenses due on the units (Count XII);

(6) violation of G. L. c. 93A, individually (Count XHI).

The complaint also included one count against CBC for negligence based on its failure to exercise due care in the design *258and construction of the condominiums (Count II),14 and three counts alleging breach of fiduciary duty against the Bomstein trustees (Counts XIV, XV, and XVI).15

a. Ruling on the defendants’ motion to dismiss. In December, 1993, the Superior Court judge dismissed the negligence claims against Bomstein and CBC (Counts I and II),16 holding that the complaint failed “to assert any damage other than the allegedly defectively designed and constructed condominium itself, [and that therefore] this claim is barred by the ‘economic loss’ doctrine.” The judge explained that:

“[T]he only damages which the plaintiffs have alleged in their complaint is the ‘substantial expense’ they will likely incur in correcting the alleged defects and deficiencies. This is essentially a claim for ‘economic loss’, as the plaintiffs have not plead[ed] any personal injury or physical damage to property separate and apart from the allegedly defective building itself.”

The judge also dismissed the claim for breach of implied warranty of habitability against Bomstein (Count X) because Massachusetts did not recognize a cause of action for breach of implied warranty of habitability arising out of the purchase of a house or condominium unit.17 Both of these pretrial mlings are before us on appeal by the trustees.

b. The trial. The case proceeded to trial before a master on the remaining claims, the scope of which was narrowed before and during trial to the following: misrepresentation against Bomstein (Count IX)18; breach of fiduciary duty against Bomstein in his capacity as trustee of the unit owners’ association *259(Count XI)19; breach of contract against Bomstein based on his failure to pay his proportionate share of common expenses for condominium units that the nominee trust owned (Count XH)20; violation of G. L. c. 93A against Bomstein based on his failure to pay common expenses when they were due (Count XIII)21; and breach of fiduciary duty against the Bomstein trastees based on their actions as trustees of the unit owners’ association (Counts XIV to XVI).22

There were forty-one days of hearings between January 3, 1994, and January 24, 1995, during which the trustees presented thirty-nine witnesses, including one rebuttal witness, and the defendants presented one witness.

c. The master’s report. After the close of the hearings, the master issued his initial report. He ruled in favor of Bomstein on the misrepresentation claim (Count IX) because none of the individual unit owners demonstrated that they had relied on representations to their detriment. He also found in favor of Bomstein on the c. 93A claim (Count XIII), ruling c. 93A inapplicable to a private dispute between a condominium unit owners’ association and a member of that association.

The master ruled in favor of the trastees on the breach of contract claim (Count XII), finding that Bomstein had breached a contract with the trust by failing to pay $36,223 in common area fees. However, he found that the trustees had suffered no damages relating to this claim because Bomstein, through CBC, had paid more than that amount for the condominium development’s expenses and maintenance that the unit owners’ association otherwise would have paid. Thus, based on this “offset,” *260the master concluded that Bomstein was not liable to the trastees for any damages on this claim.

He also mled in favor of the trustees on the fiduciary duty claim (Count XI), finding that Bomstein breached his duty as a trustee of the unit owners’ association by failing to repair a wide range of defects in construction and awarding $295,562.77 in damages. Finally, he ruled that the Bomstein trustees did not breach their fiduciary duty to the unit owners’ association (Counts XIV to XVI).

Both parties filed objections to the master’s report.

d. Ruling on the initial report and objections. On February 28, 1997, the Superior Court judge ruled on the parties’ objectians to the master’s initial report. First, he considered the master’s finding that the trustees did not suffer any damages as the result of Bomstein’s failure to pay common area fees. Noting that this conclusion violated the ruling in Trustees of the Prince Condominium Trust v. Prosser, 412 Mass. 723, 725 (1992) (unit owners may not assert right of setoff against lawfully assessed common expenses), the judge concluded that the nominee trust owed the unit owners’ association $36,233.

The judge next considered the master’s ruling on the issue of Bomstein’s breach of fiduciary duty. He found that, although the master had narrowed this claim before trial to a claim against Bomstein individually for his acts as a trustee of the unit owners’ association, the master had exceeded that limitation by effectively finding Bomstein liable not only as trustee of the unit owners’ association, but also as trustee of the nominee trust, and as the developer. Therefore, he remanded this claim to the master “to make findings of damages limited to Bomstein’s failure to maintain, repair and replace common areas from October 1981 to July 1985 in breach of his fiduciary duty as Trustee of the [unit owners’ association]” only.

Finally, the judge considered Bomstein’s contention that the master erred in assessing damages by relying on the trastees’ expert’s testimony regarding “replacement” costs, when the only damages available to the trustees were those related to the “maintenance” and “repair” of the common areas, about which there had been no expert testimony. The judge concluded that because Bomstein could be held liable for failure to “[maintain], *261repair[], and replace[]” defects in the common areas, reliance on expert testimony about replacement costs was proper.

e. Amended report. On September 14, 1999, the master issued an amended report. Based on the judge’s ruling that there was no right of setoff against common area maintenance fees, the master concluded (as had the judge) that Bornstein was liable to the trustees for $36,223 on their breach of contract claim. He also revised his findings regarding the Bornstein trustees, concluding that they had breached their fiduciary duty (in not collecting fees from Bornstein’s nominee trust) resulting in damage to the unit owners’ association and making them jointly and severally liable therefor.23 Finally, the master revised his finding of damages resulting from Bornstein’s breach of fiduciary duty as trustee of the unit owners’ association, reducing them from $295,562.77 to $104,022.70. In making this reduction, the master limited the damages to the cost of repairing and replacing the decks and the flashing around sliders, skylights, and chimneys, conditions of which Bornstein had specific knowledge as trustee of the unit owners’ association.

f. Objections to the amended report. The defendants filed objections to the master’s amended report, asserting that the master’s revised conclusion about the liability of the Bornstein trustees for the unit fees was erroneous and unwarranted by the evidence; and that the master’s revised finding on damages relating to Bornstein’s failure to repair common areas was based on an improper measure of damages, relied on evidence of repair costs that was too remote in time, and was not supported by admissible evidence.

The trustees did not file any objections to the master’s amended report. On May 1, 2000, the judge denied the defendants’ objections and confirmed the report without modification. Both parties have appealed.

3. Discussion. We first consider the issues raised by the trustees in their appeal from the judge’s dismissal of the implied warranty and negligence claims. We then consider the issues *262raised by the parties in their appeals from the findings in the master’s reports.

a. Breach of the implied warranty of habitability (Count X). This case raises issues similar to those raised in Albrecht v. Clifford, 436 Mass. 706 (2002). There we held that an implied warranty of habitability attaches to the sale of new homes by builder-vendors in the Commonwealth. Here, the judge allowed Bornstein’s motion to dismiss because “[ujnder the current state of the law in this Commonwealth, such a cause of action arises only in situations involving the rental of residential property, and does not extend to the purchase of a house or condominium.” We now consider whether the implied warranty of habitability attaches to the sale of residential condominium units by a builder-vendor.

Ownership of a residential condominium involves a form of property ownership different from ownership of a house. “Ownership of a condominium unit is a hybrid form of interest in real estate, entitling the owner to both ‘exclusive ownership and possession of his unit, G. L. c. 183A, § 4, and ... an undivided interest [as tenant in common together with all the other unit owners] in the common areas . . . .’ ” Noble v. Murphy, 34 Mass. App. Ct. 452, 455-456 (1993), quoting Kaplan v. Boudreaux, 410 Mass. 435, 438 (1991).24 “This division between individual and common rights is basic to the theory of condominium ownership.” Golub v. Milpo, Inc., 402 Mass. 397, 401-402 (1988), citing Rohan, The “Model Condominium Code” — A Blueprint for Modernizing Condominium Legislatian, 78 Colum. L. Rev. 587, 587 n.3 (1978), and Schwartz, Condominium: A Hybrid Castle in the Sky, 44 B.U. L. Rev. 137, 139 (1964). “It affords an opportunity to combine the legal benefits of fee simple ownership with the economic advantages *263of joint acquisition and operation of various amenities including recreational facilities, contracted caretaking, and security safeguards” (footnote omitted). Noble v. Murphy, supra at 456. In keeping with this division of property ownership, condominium unit owners cede the management and control of the common areas to the organization of unit owners, which is the only party that may bring litigation relating to the common areas of the condominium development on their behalf. G. L. c. 183A, § 10 (b) (4). See Strauss v. Oyster River Condominium, Trust, 417 Mass. 442, 445 (1994) (“Only the trustees have the right to conduct litigation concerning ‘common areas and facilities’ ”). The division in property ownership, however, does not mean that a condominium unit owner has “relinquishfedj to the condominium association all actions against the developer for failure to deliver what was promised.” Cigal v. Leader Dev. Corp., 408 Mass. 212, 215 (1990). For example, “[njothing in G. L. c. 183A divests the purchaser of a condominium unit of the right to sue in breach of contract.” Id. (“a breach of contract claim has an ‘individual character’ and is the sort of action that we have ruled may be brought or settled only by an individual unit owner”).

The policy reasons that led us to adopt an implied warranty of habitability in the purchase of a new home apply equally to the purchase of a new condominium unit. See Albrecht v. Clifford, supra at 710-712 (implied warranty protects purchasers from structural defects which are nearly impossible to ascertain by inspection after home is built and imposes burden of repairing latent defects on person who has opportunity to notice, avoid, or correct them during construction process). The legal differences between the purchase and ownership of a condominium unit and the purchase and ownership of a house are inconsequential when compared to the similarity of purpose underlying both transactions, i.e., the acquisition of a habitable home. We therefore decide that an implied warranty of habitability attaches to the sale of new residential condominium units by builder-vendors in the Commonwealth, just as it now. applies to the sale of new houses. See Gable v. Silver, 258 So. 2d 11, 18 (Fla. Dist. Ct. App. 1972) (“implied warranties of fitness and merchantability extend to the purchase of new *264condominiums in Florida from builders”); Pontiere v. James Dinert, Inc., 426 Pa. Super. 576 (1993) (original purchasers of condominium units may bring suit for breach of implied warranty of habitability and workmanlike construction).

A claim for breach of this implied warranty may be brought by an individual unit owner who can establish that (1) he purchased a new residential condominium unit from the builder-vendor; (2) the condominium unit contained a latent defect; (3) the defect manifested itself to the purchaser only after its purchase; (4) the defect was caused by the builder’s improper design, material, or workmanship; and (5) the defect created a substantial question of safety or made the condominium unit unfit for human habitation. Albrecht v. Clifford, supra at 711-712. In addition, the claim must be brought within the three-year statute of limitation and the six-year statute of repose set forth in G. L. c. 260, § 2B. 25

Because of the distinctive ownership divisions between units and common areas that characterize condominiums, the protections afforded purchasers of newly constructed condominium units by this implied warranty against latent defects in their own units may not be adequate to ensure the habitability of those units. Therefore, we next consider whether an organization of unit owners may bring a claim for breach of an implied warranty of habitability against a vendor-builder for defects in *265the common areas of a condominium development that implicate the habitability of the individual units.

In Massachusetts, condominium unit owners own the common areas as tenants in common in proportion to their respective undivided interests. See Kaplan v. Boudreaux, supra at 438; Noble v. Murphy, supra at 456. However, the management and control of the common areas of a condominium development is vested in the organization of unit owners, G. L. c. 183A, § 10, which is defined as “the corporation, trust or association owned by the unit owners and used by them to manage and regulate tire condominium.” G. L. c. 183A, § 1. The trustees or other members of the organization of unit owners may act only on behalf of all of the unit owners. Golub v. Milpo, Inc., supra at 401. Here, the organization of unit owners is a trust, and the trustees are empowered by G. L. c. 183A, § 10 (b) (4), to “conduct litigation and to be subject to suit as to any course of action involving the common areas and facilities.”

When there are defects or other problems in the common areas, the organization of unit owners has the exclusive right to seek a remedy. G. L. c. 183A, § 10 (b) (4). See Strauss v. Oyster River Condominium Trust, supra. This exclusive right, combined with a unit owner’s virtually nonexistent control over the common areas, may result in an incomplete remedy for unit owners against a builder whose improper design, material, or workmanship is responsible for a defect in a common area that causes units to be unhabitable or unsafe.26 To ensure that there is a complete remedy for a breach of habitability in the sale of condominium units, we conclude that an organization of unit owners may bring a claim for breach of the implied warranty of habitability when there are latent defects in the common areas that implicate the habitability of individual units.27 To establish such a claim, the organization of unit owners *266must demonstrate that (1) it is an organization of unit owners as defined by G. L. c. 183A, § 1; (2) the common area of the condominium development contains a latent defect; (3) the latent defect manifested itself after construction of the common areas was substantially completed28; (4) the defect was caused by the builder’s improper design, material, or workmanship; and (5) the defect created a substantial question of safety as to one or more individual units, or made such units unfit for human habitation. In addition, the organization of unit owners must bring this claim within the three-year statute of limitation and the six-year statute of repose set forth in G. L. c. 260, § 2B, which begins to run at “the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.”

We vacate the dismissal of the claim for breach of the implied warranty of habitability (Count X) and, because that claim was not tried, we remand it for further proceedings consistent with this opinion.

b. Negligence claims (Counts 1 and II). The judge dismissed the trustees’ claims for negligent construction against Bornstein (Count I) and CBC (Count II) because the complaint “fails to assert any damage other than the allegedly defectively designed and constructed condominium itself, [and therefore] this claim is barred by the ‘economic loss’ doctrine.” The judge noted that “the only damages which the plaintiffs have alleged in their complaint is the ‘substantial expense’ they will likely incur in *267correcting the alleged defects and deficiencies.” Therefore, the judge concluded that “[tjhis is essentially a claim for ‘economic loss’, as the plaintiffs have not plead[ed] any personal injury or physical damage to property separate and apart from the allegedly defective building itself.”

It is well settled that in testing the correctness of a dismissal for failure to state a cognizable claim, “we accept as true all of the allegations of the complaint and all reasonable inferences which may be drawn from the complaint and which are favorable to the party whose claims have, been dismissed. . . . Further, a motion to dismiss a complaint on such grounds should not be allowed unless it appears certain that the complaining party is not entitled to relief under any state of facts which could be proved in support of his claim.” Spinner v. Nutt, 417 Mass. 549, 550 (1994), quoting Logotheti v. Gordon, 414 Mass. 308, 310-311 (1993). See Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991), and cases cited. Here, we examine the complaint to determine whether the motion judge properly applied the economic loss doctrine to the negligence claims, and if so, whether the complaint, liberally construed, alleged any damages that are not barred by that doctrine.

In the absence of personal injury or physical damage to property, the negligent supplier of a defective product is not ordinarily liable in tort for simple economic loss. FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395 (1993) (“purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage”). McDonough v. Whalen, 365 Mass. 506, 513 (1974). Economic loss includes “damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits without any claim of personal injury or damage to other property.” Marcil v. John Deere Indus. Equip. Co., 9 Mass. App. Ct. 625, 630 n.3 (1980), quoting Alfred N. Koplin & Co. v. Chrysler Corp., 49 Ill. App. 3d 194, 199 (1977). The economic loss doctrine applies not only to the purchase and sale of products but also to claims of negligent design and installation in a newly constructed home. McDonough v. Whalen, supra at 514 (doctrine did not apply when defectively designed septic system overflowed causing personal injury and damage to *268other property). See Calloway v. Reno, 993 P.2d 1259, 1266 (Nev. 2000) (“damages sought, in tort, for economic losses from a defective building are just as offensive to tort law as damages sought for economic losses stemming from a defective product”).

The motion judge’s dismissal of the negligence claim on the basis of the economic loss doctrine was error because his conclusion that the complaint did not allege damages beyond what that doctrine prohibits was based on an overly restrictive construction of the allegations in the complaint. The complaint alleges that the defects and deficiencies in the condominium development included poor construction of retaining walls, improper installation of skylights and sliding glass doors, improper construction of foundations, failure to install adequate flashing on the roofs, and failure to vent bathroom exhaust fans and attics to the outside. Accepting these allegations as true, it is reasonable to infer that the enumerated “defects and deliciencies” caused property damage beyond the defects in the condominium units themselves, and, therefore, that the trustees could have demonstrated that they were entitled to relief on their negligence claims. Spinner v. Nutt, supra at 550. In additian, the c. 93A demand letters, which were attached to the complaint and “made a part” of the c. 93A claim, contained specific allegations of property damage that occurred because of the construction defects, including water damage to the units. We therefore vacate the dismissal of the negligence claims (Counts I and II).

c. The master’s report. We next turn to the appeals from the master’s amended report. A master is a person “appointed by the court to hear evidence in connection with any action and report facts.” Mass. R. Civ. P. 53 (a), as appearing in 386 Mass. 1237 (1982). The parties agreed in a joint motion that “[t]he hearing on the merits shall be on a facts final basis.” We accept the master’s subsidiary findings of fact unless they are clearly erroneous. Mass. R. Civ. P. 53 (h) (1), appearing in 386 Mass. 1237 (1982). Pollock v. Marshall, 391 Mass. 543, 554 & n.9 (1984), citing Chase v. Pevear, 383 Mass. 350, 359 (1981). To the extent that the master’s ultimate findings are conclusions of law, they are subject to independent judicial review. Lucey v. *269Hero Int’l Corp., 361 Mass. 569, 571 (1972). “We must apply our own view of the law, and we must consider whether the master’s general findings, on a correct view of the law, are consistent with his subsidiary findings.” Chase v. Pevear, supra at 359-360.

d. Breach of fiduciary duty (Count XI). The master ruled that the complaint stated a claim for breach of fiduciary duty “against Stuart Bomstein individually . . . with regards to actions that he undertook while a trastee of the [unit owners’ association],” but not as trustee of the nominee trust. The trustees objected to this ruling. That objection is before us on appeal.

Under the Massachusetts practice of notice pleading, “there is no requirement that a complaint state the correct substantive theory of the case.” Gallant v. Worcester, 383 Mass. 707, 709 (1981). See Charbonnier v. Amico, 367 Mass. 146, 152-153 (1975); Ahern v. Warner, 16 Mass. App. Ct. 223, 226 n.2 (1983). A complaint must, however, contain “a short and plain statement of the claim,” Mass. R. Civ. P. 8 (a) (1), 365 Mass. 749 (1974), which affords fair notice to the defendant of the basis and nature of the action against him. Clark v. Greenhalge, 411 Mass. 410, 413 n.6 (1991); Ciccone v. Smith, 3 Mass. App. Ct. 733, 734 (1975). Here, the breach of fiduciary duty claim sets forth allegations against “Bomstein,” whereas other counts in the complaint identify “Bomstein, individually and as Trustee of the [nominee trust].” Applying our own view of the law, Lucey v. Hero Int’l Corp., supra, we conclude that the complaint did not afford fair notice that the trustees were asserting this claim against Bomstein in his capacity as trustee of the nominee trust. Indeed, any fiduciary duties that Bomstein owed to the unit owners’ association, were owed in his capacity as trustee of that assocation and not as trustee of the nominee trust.29 We therefore conclude that the master properly narrowed this claim as against Bomstein as trustee of the unit owners’ association.

Bomstein appeals from the damages award in the master’s *270amended report,30 contending that it is flawed in three ways: (1) it uses an improper measure of damages for the breach of a trustee’s duty to repair; (2) it relies on evidence of repair costs that was too remote in time; and (3) it is not supported by admissible evidence. We reject these contentions.

As to the proper measure of damages, the declaration of trust imposed on the trustees the obligation to “provide for the necessary work of maintenance, repair and replacement of the common areas and facilities and payments therefor.” The master concluded that Bomstein breached this obligation by failing to undertake the necessary repairs, and assessed the amount of damages as “the fair and reasonable value of the labor and materials” to replace the defective decks, to install flashing, to repair the sliding doors, and to repair the chimneys and skylights. Bomstein contends that the measure of damages should not have been the cost of repairs but rather the difference between the fair and reasonable value of the repairs if undertaken now, and their value if undertaken when Bomstein was a trustee. As to what that difference might be, Bomstein claims that the plaintiffs have offered no evidence.

When a breach of trust occurs, the beneficiary of the trust is “entitled to be put in the position he would have been in if no breach of fiduciary duty had been committed.” Fine v. Cohen, 35 Mass. App. Ct. 610, 616 (1993). Cf. Restatement (Third) of Trusts § 205(b) (1990) (trustee who commits breach of bust is “chargeable with the amount required to restore the values of the bust estate and trust distributions to what they would have been if the bust had been properly administered). Thus, a trustee who breaches his fiduciary duty to “maintain, repair, and replace” common areas is liable for the cost of returning the unit owners’ association to the position that it would have been *271in had such steps been undertaken. In circumstances such as those present here, where the cost of repair and replacement, if undertaken, would have been assessed against the unit owners association as “common expenses,”31 the liability of a trustee (if any) would be limited to additional costs incurred as a result of the delayed undertaking of those tasks. In this respect, Bomstein is correct as to the proper measure of damages in the ordinary case.

That does not lead us to conclude in this case, however, that the measure of damages found by the master and approved by the trial judge, on a correct reading of the law, was erroneous. The master found that Bomstein not only breached his fiduciary duty, but that such breach was a “willful default,” arising from a motive of personal financial gain. See New England Trust Co. v. Paine, 317 Mass. 542, 549 (1945). Accordingly, he concluded that the exculpatory clause in the declaration of trust did not relieve Bomstein of personal liability to the unit owners’ association.32 A finding of wilful default has consequences not only as to whether personal liability attaches, but also as to the proper measure of damages. Those consequences support the master’s ultimate conclusion that Bomstein was liable for the full cost of repairing and replacing the defects of which he had knowledge when he was a trustee of the unit owners’ association.

The measure of recovery for a wilful breach of fiduciary duty that results in personal financial gain to the trastee may include disgorgement of the amount of the gain. See Restatement (Third) of Trusts, supra at § 205 (“the trustee is subject to such liability as necessary to prevent the trustee from benefiting personally from the breach of trust”). Cf. Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 556 (1997) (“Where a corporate fiduciary obtains a gain or advantage through a violation of his duty of loyalty, a court may properly order restitution of the gain, so as to deny any profit to the wrongdoer and prevent his unjust enrichment”); New England Trust Co. v. Paine, supra at *272550 (breach of trust committed in bad faith, intentionally, or with reckless indifference to beneficiary’s interest results in liability based on profit derived from breach of trust).

The master’s factual findings support a broad measure of damages in this case. The master found that the repairs and replacements were necessitated by construction defects of which Bomstein was aware. The cost of correcting those defects should have been incurred by Bomstein before the units ever became part of the condominium development. By failing to make those repairs at that time, Bomstein transferred their cost to the unit owners’ association, and incurred a personal gain at its expense. Bomstein further secured his gain by failing to make the repairs while he was trustee and owned many of the units against which a substantial share of the cost of those repairs would have been assessed. In these circumstances, the master’s award of the total cost of repair or replacement of the defects as the proper measure of damages is consistent with a correct application of the law to his factual findings.

With respect to remoteness, if the evidence has some probative value, the better course is to admit the evidence and leave its weight to the factfinder. DeJesus v. Yogel, 404 Mass. 44, 47 (1989), and cases cited. Consequently, “[t]he exclusion on the ground of remoteness of relevant evidence has generally not been sustained.” Id.., citing Crowe v. Ward, 363 Mass. 85, 88-89 (1973) (“We are influenced by the general view that relevant evidence should be admitted unless there is a quite satisfactory reason for excluding it”); Kramer v. John Hancock Mut. Life Ins. Co., 336 Mass. 465, 468 (1957) (relationship of excluded evidence to issue in case would not have been “mere conjecture” and should have been admitted). We also acknowledge that “[t]he cases have recognized a range of discretion in the judge.” DeJesus v. Yogel, supra, citing