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At Hurtik Law & Associates we have been practicing Construction Defect Law since 1999, we have represented homeowners, custom-home builders, contractors, and subcontractors. We have been involved in complex civil litigation and can represent individuals and business entities in construction disputes, whether they be disputes over construction defects, indemnity clauses, breach of contract issues, or breach of warranty issues.

Contracts to build new construction or add to, or remodel homes frequently lead to construction disputes. This is often because the contractor agreement for a project wasn’t clear enough, or because of varying circumstances. A few different areas of dispute can arise in these situations:

  • Poor workmanship or use of defective materials

An owner may object to the quality of workmanship, either by the general contractor or by a subcontractor hired by the general contractor, or to the quality of materials used. It will be much easier to resolve this kind of dispute if the contractor agreement is very clear in specifying what materials to use and how the project is to be done. If the construction contract is vague, and says something like, “good quality materials,” the owner may find that his or her idea of good quality is not the same as the contractor’s and it will be very difficult to prove what the contract meant. Another area of dispute can be the contractors.

  • Failure to complete on time

If the contractor agreement specified an approximate time for the completion of the project, the general contractor negligently failed to complete the project on time, and the owner suffered damages because of the delay, the owner may claim compensation. An amount of damages can be agreed upon at the time the contractor agreement is signed to cover this kind of breach on the part of the contractor.

    Damage to the property

A contractor may cause damage to the property while doing the project that isn’t covered by the contractor’s insurance. This is why it’s important to make sure the general contractor has up-to-date liability insurance policy.

When an owner brings a lawsuit or other claim for breach of a construction contract there are two different ways of determining construction contract damages. The first, and most common, is that the owner can recover the amount of money it will take to repair defects or make the structure conform to the original plans and specifications for work and materials. In other words, the owner recovers damages in an amount needed to fix the home and make it the way it was supposed to be under the contractor agreement.

There’s an exception to this rule, however. If the contractor can prove that to tear out work and repair defects would be unreasonable economic waste, the owner’s damages are calculated another way. In that situation the owner is entitled to recover the difference in the value of the property as it exists and the value it would have had if the work had been done properly.

Alternative Dispute Resolution Several states have dispute resolution programs for conflicts between owners and licensed contractors. Some states also have funds available to compensate owners who have been injured by contractors. You may want to include a provision for resolving disputes in your contractor agreement at the beginning of the project. For example, you can require that disputes be resolved in arbitration, which is usually faster and less costly than litigation.

Nevada Is Governed by Chapter 40 which offers the contractors a right to repair and provides certain statutory guidelines that the homeowner and the contractors must follow.

NRS 40.615 “Constructional defect” defined. “Constructional defect” means a defect in the design, construction, manufacture, repair or landscaping of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance and includes, without limitation, the design, construction, manufacture, repair or landscaping of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance:

  1. Which is done in violation of law, including, without limitation, in violation of local codes or ordinances;
  2. Which proximately causes physical damage to the residence, an appurtenance or the real property to which the residence or appurtenance is affixed;
  3. Which is not completed in a good and workmanlike manner in accordance with the generally accepted standard of care in the industry for that type of design, construction, manufacture, repair or landscaping; or
  4. Which presents an unreasonable risk of injury to a person or property.

(Added to NRS by 1995, 2539; A 2003, 2041)

A homeowner or claimant must provide a Notice of Defect to the contractor as follows for a construction defect claim:

NRS 40.645 Notice of defect: Required before commencement of or addition to certain actions; content; reliance on expert opinion based on representative sample; notice regarding similarly situated owners; persons authorized to provide notice; exceptions.

  1. Except as otherwise provided in this section and NRS 40.670, before a claimant commences an action or amends a complaint to add a cause of action for a constructional defect against a contractor, subcontractor, supplier or design professional, the claimant:
    1. Must give written notice by certified mail, return receipt requested, to the contractor, at the contractor’s address listed in the records of the State Contractors’ Board or in the records of the office of the county or city clerk or at the contractor’s last known address if the contractor’s address is not listed in those records; and
    2. May give written notice by certified mail, return receipt requested, to any subcontractor, supplier or design professional known to the claimant who may be responsible for the constructional defect, if the claimant knows that the contractor is no longer licensed in this State or that the contractor no longer acts as a contractor in this State.
  2. The notice given pursuant to subsection 1 must:
    1. Include a statement that the notice is being given to satisfy the requirements of this section;
    2. Specify in reasonable detail the defects or any damages or injuries to each residence or appurtenance that is the subject of the claim; and
    3. Describe in reasonable detail the cause of the defects if the cause is known, the nature and extent that is known of the damage or injury resulting from the defects and the location of each defect within each residence or appurtenance to the extent known.
  3. Notice that includes an expert opinion concerning the cause of the constructional defects and the nature and extent of the damage or injury resulting from the defects which is based on a valid and reliable representative sample of the components of the residences or appurtenances may be used as notice of the common constructional defects within the residences or appurtenances to which the expert opinion applies.
  4. Except as otherwise provided in subsection 5, one notice may be sent relating to all similarly situated owners of residences or appurtenances within a single development that allegedly have common constructional defects if:
    1. An expert opinion is obtained concerning the cause of the common constructional defects and the nature and extent of the damage or injury resulting from the common constructional defects;
    2. That expert opinion concludes that based on a valid and reliable representative sample of the components of the residences and appurtenances included in the notice, it is the opinion of the expert that those similarly situated residences and appurtenances may have such common constructional defects; and
    3. A copy of the expert opinion is included with the notice.
  5. A representative of a homeowner’s association may send notice pursuant to this section on behalf of an association that is responsible for a residence or appurtenance if the representative is acting within the scope of the representative’s duties pursuant to chapter 116 or 117 of NRS.
  6. Notice is not required pursuant to this section before commencing an action if:
    1. The contractor, subcontractor, supplier or design professional has filed an action against the claimant; or
    2. The claimant has filed a formal complaint with a law enforcement agency against the contractor, subcontractor, supplier or design professional for threatening to commit or committing an act of violence or a criminal offense against the claimant or the property of the claimant.

(Added to NRS by 1995, 2540; A 1997, 2718; 1999, 1440; 2003, 2042)

NRS 40.647 Claimant required to allow inspection of and reasonable opportunity to repair defect; effect of noncompliance.

  1. Except as otherwise provided in NRS 40.6452, after notice of a constructional defect is given pursuant to NRS 40.645, before a claimant may commence an action or amend a complaint to add a cause of action for a constructional defect against a contractor, subcontractor, supplier or design professional, the claimant must:
    1. Allow an inspection of the alleged constructional defect to be conducted pursuant to NRS 40.6462; and
    2. Allow the contractor, subcontractor, supplier or design professional a reasonable opportunity to repair the constructional defect or cause the defect to be repaired if an election to repair is made pursuant to NRS 40.6472.
  2. If a claimant commences an action without complying with subsection 1 or NRS 40.645, the court shall:
    1. Dismiss the action without prejudice and compel the claimant to comply with those provisions before filing another action; or
    2. If dismissal of the action would prevent the claimant from filing another action because the action would be procedurally barred by the statute of limitations or statute of repose, the court shall stay the proceeding pending compliance with those provisions by the claimant. (Added to NRS by 2003, 2039)

NRS 40.6472 Response to notice of defect: Time for sending; content; effect of election to repair or not to repair.

  1. Except as otherwise provided in NRS 40.670 and 40.672 and NRS 40.6452, a written response must be sent by certified mail, return receipt requested, to a claimant who gives notice of a constructional defect pursuant to NRS 40.645:
    1. By the contractor not later than 90 days after the contractor receives the notice; and
    2. If notice was sent to a subcontractor, supplier or design professional, by the subcontractor, supplier or design professional not later than 90 days after the date that the subcontractor, supplier or design professional receives the notice.
  2. The written response sent pursuant to subsection 1 must respond to each constructional defect in the notice and:
    1. Must state whether the contractor, subcontractor, supplier or design professional has elected to repair the defect or cause the defect to be repaired. If an election to repair is included in the response and the repair will cause the claimant to move from the claimant’s home during the repair, the election must also include monetary compensation in an amount reasonably necessary for temporary housing or for storage of household items, or for both, if necessary.
    2. May include a proposal for monetary compensation, which may include contribution from a subcontractor, supplier or design professional.
    3. May disclaim liability for the constructional defect and state the reasons for such a disclaimer.
  3. If the claimant is a homeowners’ association, the association shall send a copy of the response to each member of the association not later than 30 days after receiving the response.
  4. If the contractor, subcontractor, supplier or design professional has elected not to repair the constructional defect, the claimant or contractor may bring a cause of action for the constructional defect or amend a complaint to add a cause of action for the constructional defect.
  5. If the contractor, subcontractor, supplier or design professional has elected to repair the constructional defect, the claimant must provide the contractor, subcontractor, supplier or design professional with a reasonable opportunity to repair the constructional defect.If the contractor, subcontractor, supplier or design professional has elected to repair the constructional defect, the claimant must provide the contractor, subcontractor, supplier or design professional with a reasonable opportunity to repair the constructional defect.

(Added to NRS by 2003, 2037)

NRS 40.648 Election to repair defect: Who may repair; manner for performing repairs; deadline for repair; extension of deadline; written statement of repairs performed.

  1. If the response provided pursuant to NRS 40.6472 includes an election to repair the constructional defect:
    1. The repairs may be performed by the contractor, subcontractor, supplier or design professional, if such person is properly licensed, bonded and insured to perform the repairs and, if such person is not, the repairs may be performed by another person who meets those qualifications.
    2. The repairs must be performed:
      1. On reasonable dates and at reasonable times agreed to in advance with the claimant;
      2. In compliance with any applicable building code and in a good and workmanlike manner in accordance with the generally accepted standard of care in the industry for that type of repair; and
      3. In a manner which will not increase the cost of maintaining the residence or appurtenance than otherwise would have been required if the residence or appurtenance had been constructed without the constructional defect, unless the contractor and the claimant agree in writing that the contractor will compensate the claimant for the increased cost incurred as a result of the repair.
    3. Any part of the residence or appurtenance that is not defective but which must be removed to correct the constructional defect must be replaced.
    4. The contractor, subcontractor, supplier or design professional shall prevent, remove and indemnify the claimant against any mechanics’ liens and material men’s liens.
  2. Unless the claimant and the contractor, subcontractor, supplier or design professional agree to extend the time for repairs, the repairs must be completed:
    1. If the notice was sent pursuant to subsection 4 of NRS 40.645 and there are four or fewer owners named in the notice, for the named owners, not later than 105 days after the date on which the contractor received the notice.
    2. If the notice was sent pursuant to subsection 4 of NRS 40.645 and there are five or more owners named in the notice, for the named owners, not later than 150 days after the date on which the contractor received the notice.
    3. If the notice was sent pursuant to subsection 4 of NRS 40.645, not later than 105 days after the date on which the contractor provides a disclosure of the notice to the unnamed owners to whom the notice applies pursuant to NRS 40.6452.
    4. If the notice was not sent pursuant to subsection 4 of NRS 40.645:
        If the notice was not sent pursuant to subsection 4 of NRS 40.645: 

      1. Not later than 105 days after the date on which the notice of the constructional defect was received by the contractor, subcontractor, supplier or design professional if the notice of a constructional defect was received from four or fewer owners; or
      2. Not later than 150 days after the date on which the notice of the constructional defect was received by the contractor, subcontractor, supplier or design professional if the notice was received from five or more owners or from a representative of a homeowners’ association.
  3. If repairs reasonably cannot be completed within the time set forth in subsection 2, the claimant and the contractor, subcontractor, supplier or design professional shall agree to a reasonable time within which to complete the repair. If the claimant and contractor, subcontractor, supplier or design professional cannot agree on such a time, any of them may petition the court to establish a reasonable time for completing the repair.
  4. Any election to repair made pursuant to NRS 40.6472 may not be made conditional upon a release of liability.
  5. Not later than 30 days after the repairs are completed, the contractor, subcontractor, supplier or design professional who repaired or caused the repair of a constructional defect shall provide the claimant with a written statement describing the nature and extent of the repair, the method used to repair the constructional defect and the extent of any materials or parts that were replaced during the repair.

(Added to NRS by 2003, 2037)

Whether you be a homeowner with a potential construction defect or a contractor or subcontractor who has received NOTICE OF A CONSTRUCTION DEFECT Let HURTIK LAW help guide you through the process and explain your rights and best cause of action.

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