Nevada (702) 251-0093
California (619) 232-2828
Contact UsNevada Revised Statutes 40.615 defines a Construction Defect as a design, construction, manufacture, repair or landscaping of a residence:
Common examples of defective construction may include: Significant cracks in the slab and/or foundation; unevenness in floor slabs caused by abnormal soils movement; leaky roofs and/or windows; moisture problems due to improper drainage and/or waterproofing; faulty or corroded plumbing; faulty framing; homes that do not adequately heat or cool; over stressed structural members, bowing or slanting of floors and walls; doors and windows that bind and are difficult to open and close and cabinets or counter tops that are separated from walls or ceilings. (This is not an all-inclusive list.)
A. Of course, some conditions may be obvious, such as large cracks in the foundation, floor slab, or walls. However, as a general rule, most defective conditions become apparent approximately 3 to 5 years after the completion of construction.
In our experience, if you own a tract home or condominium, the problems or concerns you have are not unique to your property. Talk to your neighbors. Chances are they will have similar conditions. In all circumstances, we suggest that you contact your builder/developer for an explanation concerning the potential problem as well as assistance in fixing it. Be careful to make sure that the problem is fully identified and that the proposed fix is not a temporary "band-aid." For the most objective opinions, we strongly suggest that you have a qualified construction expert inspect your property as soon as you suspect that a problem exists.
A. Nevada law favors the property owner. In the case of mass produced tract homes or condominiums, the builder/developer is responsible for all defective conditions that may exist within your property or community. Nevada's Construction Defect Statute NRS 40.640 et. seq, is attached for you review.
A. The builder/developer is responsible for all defective conditions even if the actual work was performed by a subcontractor or if the defective materials used in construction are manufactured by someone else. Of course, the involved design professionals and subcontractors remain responsible for their work. However, in light of the builder/developer's responsibility for the work of others, it is easier for the property owner to go directly to the builder/developer for recourse. Many of our clients relate horror stories in which the builder/developer disavowed his/her own responsibility and advised the property owner to "chase" the subcontractors. We advise our clients that in many cases, this is unnecessary and fails to result in a satisfactory resolution.
A. Damages may include the cost of repairs, diminution in value of property, the costs of expert investigation, additional living expenses incurred while the necessary repairs are made, attorney's fees, and loss of use and enjoyment. NRS 40.655 is attached for your review:
Except as otherwise provided in NRS 40.650, in a claim governed by NRS 40.600 to 40.695, inclusive, the claimant may recover only the following damages to the extent proximately caused by a constructional defect:
A. Any individual or entity whose interest in the real property has been harmed may assert a claim for construction defects. One need not be the original owner. A subsequent purchaser has the same rights to pursue claims as the original owner. However, a subsequent purchaser's claims may be limited to the extent possession of the property was acquired with knowledge of the defects. Similarly, a homeowners association in a common interest development such as a condominium project may assert claims for damages to the common areas, as well as for damage to an individual owner's separate interests which arises out of, or are integrally related to, damage to the common areas or separate interests that the association is obligated to maintain or repair.
A. Most likely yes! The mere fact that the builder/ developer filed for bankruptcy protection does not afford protection to any liability insurance policies for the builder/developer, subcontractor or whoever it is that filed bankruptcy. Typically, upon a motion made before the bankruptcy court, or by agreement with the attorney appointed by the insurance company to defend the developer, the bankruptcy court will allow the lawsuit to proceed, with the recovery limited to the proceeds of insurance policies. In all instances where bankruptcy has occurred, there must be a careful evaluation of the potential for insurance coverage, and the nature of the bankruptcy proceeding.
A. The process begins with an identifiable defective condition within the home. This could be a leaking roof or a faulty heating and air conditioning system. Once this condition is identified we have it inspected by a qualified expert and issue a Chapter 40 Notice placing that places builder on notice of the condition and tolls the statue of limitations. See example of a Chapter 40 Notice.
At that point, the developer and subcontractors have an opportunity to make repairs; however, if the developer or subcontractors elect not to make the repairs or settle through mediation, the case will then proceed to litigation.
A. In Nevada, the time limits for your construction defect claim are as follows:
A. Although some lending institutions have policies against financing properties involved in construction defect litigation, numerous other lenders regularly provide these types of financing. In addition, there are certain companies that provide private loans to those who are involved in litigation.
A. Yes. Regardless of whether you are involved in a construction defect claim, owners have a common law duty to disclose any construction defects that they are aware of, or should be aware of.
In addition, NRS 40.688 requires that owners disclose, in writing, to any prospective purchaser:
A. Unfortunately, the value of your home may have already been reduced by the discovered defects. Under Nevada law, you must disclose all known defects to potential buyers. By filing a construction defect suit you are actually serving to protect the value of your home by recovering funds to make the necessary repairs.
A. We use a team of experts to help prove your construction defect claim. Experts help determine the nature and extent of your construction defect problems, design methods of repair, and estimate the cost of those repairs. Some of the experts we use are:
A. Yes. A reputable builder will usually offer to make the necessary repairs to your home. If that is the case, it's still a good idea to retain your own expert to oversee the repairs, and to ask the developer for additional warranties relative to the repair work.
A. If you are part of a Home Owner's Association, then the Association should be the party to seek recourse for defects in common areas, areas the Association is required to maintain, or separate area damage that is related to common area issues. Your Association's governing documents will specify the extent of the Associations responsibility.
A. In just about every case, we are asked by our clients:
"Why did the building inspector ever approve our property when it is defective?" And, "Why can't we sue that inspector?"
The answer is: We would like to, but public employees are generally immune from suit for acts within their discretion. Further, building officials who act in good faith and without malice (ill will or evil intent) in the discharge of their duties are statutorily immune from liability.
A. Today, most attorneys work in a specific area to provide greater service and expertise to their clients. In the area of construction defect law, your lawyer must be knowledgeable in all the following:
Effective counsel typically has a track record of successful settlements and court verdicts from which you can gauge his/her ability to fully and adequately represent you. As a potential client, do not be afraid to ask about a lawyer's experience.
When all else fails, and you receive no satisfaction from the builder/developer of your property, the next step is to file a lawsuit. To make the litigation process easier and more efficient, you should fully and timely cooperate with your attorney and provide specific information regarding your property and the damage it has suffered. The lawsuit will go much more smoothly if this information is provided to your lawyer prior to filing the suit.
It will be necessary for your lawyer to know:
If any representations regarding the condition of your property were made to you by the builder or the builder's representatives. Give the name of the representative and relate what representations were made. (For example: Bill Smith with Build'em Right told us that it is normal for the patio slab to move up and away from the house. He told us that in March of 2011).
You will also be required to provide numerous documents, such as:
Providing your attorney with the appropriate information and dates will make the handling of your lawsuit easier and more efficient. At some point in the lawsuit, you will be required to verify this information (and possibly more) under oath.
As we advise each of our clients, never make a "mountain out of a molehill." Each defect that you allege to exist within your property must be later disclosed to a would-be buyer. However, there is no question that a property owner is entitled to the quality product the builder/developer represented. Nevada law provides you, the owner, the legal right and procedures to recover the value of your home and investment when significant construction defects exist. This Construction Defect FAQ is for general informational purposes only; does not provide specific legal advice; and is not meant to be relied upon as applying to a particular set of facts or circumstances. An attorney-client relationship is not intended nor created by receipt of this Guide. Although every effort has been made to ensure the accuracy of the information contained in this Guide, no warranty is made, either express or implied, and neither the publisher nor the authors assume any liability in connection with or resulting from its use.