Construction Defects

WHAT ARE CONSTRUCTION DEFECTS

If something about your home or association does not work the way it is supposed to, such as the window leaks, the roof leaks, the drainage is stopped to your door, or the foundation is cracked, these are all examples of construction defects. In purely legal terms, Nevada law defines a construction defect as: 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 presents an unreasonable risk of injury to a person or property; or
  2. Which is not completed in a good and workmanlike manner and proximately causes physical damage to the residence, an appurtenance or the real property to which the residence or appurtenance is affixed.
Construction Defects

KNOW YOUR RIGHTS

If defective conditions are present, you have a right to have your home fixed. In other words, Nevada law provides that you are entitled to have your home restored to the condition it should have been in when your builder completed construction and transferred ownership. Under Nevada law, upon being provided with legal notice, your builder is given one final opportunity to make effective and proper repairs. These repairs must be performed in accordance with any applicable building codes and cannot increase the maintenance burden you would have faced had your home been properly constructed. To ensure the builder properly performs these repairs, they cannot ask you to sign any release of responsibility. If the builder refuses to perform repairs or if the repairs are improper, you maintain your rights to further pursue claims.

If you are put into a position where legal representation is necessary, Nevada law provides that you are entitled to recover any costs incurred. Unfortunately, the legislature recently passed a bill disallowing right to the recovery of attorneys’ fees. However, we will still work with you to help you rightfully pursue a claim for construction defects against you contractor/builder. Contact us for more information.

HOW CAN WE HELP?

Once you have reached the point where you feel that you cannot get proper resolution from your builder/contractor for a construction defect and you have called an attorney, the following steps will occur.

A representative from the firm will meet with you to discuss your problems. Provide the legal assistant/paralegal with all of the records you have kept regarding the purchase of your home, any warranty claims you have made, and the problems you have experienced. If your problem warrants further investigation, an inspection of the damage by qualified professionals will follow. Damage will be documented through photographs and/or video. Experts may be called in to survey the damage or to determine the cause of the problems. If necessary, various tests will be ordered and performed.

Before a lawsuit can be filed, a formal claim/notice must be presented to the builder/contractor. The builder/contractor can elect to perform repairs. If repairs are performed, the builder/contractor cannot seek a release of any future claims. If the builder/contractor does not elect to repair, or if the repairs are inadequate, the next step is mediation. Mediation is simply negotiation between you and your builder/contractor to resolve the claims. If mediation at this time is not successful in resolving your claims, a lawsuit can be filed on your behalf and on behalf of your neighbors experiencing similar problems.

There is not only strength in numbers, but the fee arrangement with your attorney can become more favorable when more homeowners are involved, especially given the recently enacted bill that took away a homeowners’ right to recover attorneys’ fees in a construction defect case.

Before your case can go to trial, a substantial amount of evidence must be uncovered and prepared. This is the discovery process. Once all the evidence is prepared, a trial date can be set. The discovery process may include your testimony under oath, in what is known as a deposition, so you can tell your story.

The objective of the trial is to win reasonable compensation for you to properly repair your home, and to cover all costs related to the lawsuit — expert expenses, tests, attorneys’ fees, etc. Not all trials conclude with a verdict. Sometimes the developer/contractor, and/or others involved in the design and construction of your home, may offer an amount in settlement to end the case before a verdict is reached. Our mission has and always will be to get defective homes repaired correctly at no cost to the homeowner. While recent changes in legislation will make this mission more difficult, we vow to look out for the best interest of our homeowner clients and pursue claims against builders and contractors who provide consumers with defectively constructed homes.

HOMEOWNERS’ ASSOCIATIONS

HOA LawAssociations maintain the right to pursue claims for construction defects as to the common areas/elements and on behalf of two or more unit owners on matters which affect the common interest community. This right to pursue claims gives associations a powerful hand to ensure the common areas/elements in their community are maintained to help with overall community property values.

If defective conditions are present within your community, you have a right to have your common areas fixed. In other words, Nevada law provides you are entitled to have your community restored to the condition it should have been in when your builder turned control over to the association. Under Nevada law, to ensure all claims within your community are properly included, an investigation of defective conditions by a qualified construction expert is recommended. Doing so also ensures your board has maintained their fiduciary obligations by relying upon experienced and qualified individuals when making any decision which may affect your community.

Once this investigation has been performed, legal notice can then be provided to your builder demonstrating a community-wide investigation has been performed, noting the defective conditions discovered and their potential causes. Upon being provided with this legal notice, your community’s builder is given one final opportunity to make effective and proper repairs. These repairs must be performed in accordance with any applicable building codes and cannot increase the maintenance burden your association and individual homeowners would have faced had your community been properly constructed. To ensure the builder properly performs these repairs, it cannot ask your association or individual homeowners to sign any release of responsibility. If the builder refuses to perform repairs or if the repairs are improper, your community has maintained its rights to further pursue claims. If your association is put into a position where legal representation is necessary, Nevada law provides you are entitled to recover any costs incurred. The goal is to ensure your community does not have to take money from association dues, bank loans or reserves to correct problems your community’s builder is responsible to correct.

Should you believe construction defects are present within your community common areas, call our office to arrange a free initial inspection. A representative from our firm will meet with your board and individual homeowners to further explain your legal rights and can arrange for an inspection of your community to provide insight of what problems might exist.

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