ACTIONS RESULTING FROM CONSTRUCTIONAL DEFECT
General Provisions
NRS 40.600 Definitions. As used in NRS 40.600 to 40.695, inclusive, unless the context otherwise requires, the words and terms defined in NRS 40.605 to 40.634, inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 1995, 2539; A 1997, 2716; 1999, 1440; 2001 Special Session, 67; 2003, 2041)
NRS 40.603 “Amend a complaint to add a cause of action for a constructional defect” defined. “Amend a complaint to add a cause of action for a constructional defect” means any act by which a claimant seeks to:
1. Add to the pleadings a defective component that is not otherwise included in the pleadings and for which a notice was not previously given; or
2. Amend the pleadings in such a manner that the practical effect is the addition of a constructional defect that is not otherwise included in the pleadings.
? The term does not include amending a complaint to plead a different cause for a constructional defect which is included in the same action.
(Added to NRS by 2003, 2034)
NRS 40.605 “Appurtenance” defined.
1. “Appurtenance” means a structure, installation, facility, amenity or other improvement that is appurtenant to or benefits one or more residences, but is not a part of the dwelling unit. The term includes, without limitation, the parcel of real property, recreational facilities, golf courses, walls, sidewalks, driveways, landscaping, common elements and limited common elements other than those described in NRS 116.2102, and other structures, installations, facilities and amenities associated with or benefiting one or more residences.
2. As used in this section:
(a) “Common elements” has the meaning ascribed to it in NRS 116.017.
(b) “Limited common element” has the meaning ascribed to it in NRS 116.059.
(Added to NRS by 1995, 2539; A 1997, 2716; 1999, 1440)
NRS 40.610 “Claimant” defined. “Claimant” means:
1. An owner of a residence or appurtenance;
2. A representative of a homeowner’s association that is responsible for a residence or appurtenance and is acting within the scope of his duties pursuant to chapter 116 or 117 of NRS; or
3. Each owner of a residence or appurtenance to whom a notice applies pursuant to subsection 4 of NRS 40.645.
(Added to NRS by 1995, 2539; A 1997, 2717; 2003, 2041)
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)
NRS 40.620 “Contractor” defined. “Contractor” means a person who, with or without a license issued pursuant to chapter 624 of NRS, by himself or through his agents, employees or subcontractors:
1. Develops, constructs, alters, repairs, improves or landscapes a residence, appurtenance or any part thereof;
2. Develops a site for a residence, appurtenance or any part thereof; or
3. Sells a residence or appurtenance, any part of which the person, by himself or through his agents, employees or subcontractors, has developed, constructed, altered, repaired, improved or landscaped.
(Added to NRS by 1995, 2539; A 1997, 2717)
NRS 40.623 “Design professional” defined. “Design professional” means a person who holds a professional license or certificate issued pursuant to chapter 623, 623A or 625 of NRS.
(Added to NRS by 2003, 2034)
NRS 40.625 “Homeowner’s warranty” defined. “Homeowner’s warranty” means a warranty or policy of insurance:
1. Issued or purchased by or on behalf of a contractor for the protection of a claimant; or
2. Purchased by or on behalf of a claimant pursuant to NRS 690B.100 to 690B.180, inclusive.
?The term includes a warranty contract issued by a risk retention group that operates in compliance with chapter 695E of NRS and insures all or any part of the liability of a contractor for the cost to repair a constructional defect in a residence.
(Added to NRS by 1995, 2540; A 1997, 2717; 1999, 1440)
NRS 40.630 “Residence” defined. “Residence” means any dwelling in which title to the individual units is transferred to the owners.
(Added to NRS by 1995, 2540; A 1997, 2717)
NRS 40.632 “Subcontractor” defined. “Subcontractor” means a contractor who performs work on behalf of another contractor in the construction of a residence or appurtenance.
(Added to NRS by 2003, 2034)
NRS 40.634 “Supplier” defined. “Supplier” means a person who provides materials, equipment or other supplies for the construction of a residence or appurtenance.
(Added to NRS by 2003, 2034)
NRS 40.635 Applicability; effect on other defenses. NRS 40.600 to 40.695, inclusive:
1. Apply to any claim that arises before, on or after July 1, 1995, as the result of a constructional defect, except a claim for personal injury or wrongful death, if the claim is the subject of an action commenced on or after July 1, 1995.
2. Prevail over any conflicting law otherwise applicable to the claim or cause of action.
3. Do not bar or limit any defense otherwise available, except as otherwise provided in those sections.
4. Do not create a new theory upon which liability may be based, except as otherwise provided in those sections.
(Added to NRS by 1995, 2540; A 1997, 2717; 2003, 2041)
Conditions and Limitations on Actions
NRS 40.640 Liability of contractor. In a claim to recover damages resulting from a constructional defect, a contractor is liable for his acts or omissions or the acts or omissions of his agents, employees or subcontractors and is not liable for any damages caused by:
1. The acts or omissions of a person other than the contractor or his agent, employee or subcontractor;
2. The failure of a person other than the contractor or his agent, employee or subcontractor to take reasonable action to reduce the damages or maintain the residence;
3. Normal wear, tear or deterioration;
4. Normal shrinkage, swelling, expansion or settlement; or
5. Any constructional defect disclosed to an owner before his purchase of the residence, if the disclosure was provided in language that is understandable and was written in underlined and boldfaced type with capital letters.
(Added to NRS by 1995, 2540; A 1997, 2718)
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:
(a) 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 his address is not listed in those records; and
(b) 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 he no longer acts as a contractor in this State.
2. The notice given pursuant to subsection 1 must:
(a) Include a statement that the notice is being given to satisfy the requirements of this section;
(b) Specify in reasonable detail the defects or any damages or injuries to each residence or appurtenance that is the subject of the claim; and
(c) 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:
(a) 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;
(b) 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
(c) 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 his duties pursuant to chapter 116 or 117 of NRS.
6. Notice is not required pursuant to this section before commencing an action if:
(a) The contractor, subcontractor, supplier or design professional has filed an action against the claimant; or
(b) 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 40.6452 Common constructional defects within single development: Response to notice of defect by contractor; disclosure to unnamed owners; effect of contractor failing to provide disclosure to unnamed owners.
1. Except as otherwise provided in subsection 2, not later than 60 days after a contractor receives a notice pursuant to subsection 4 of NRS 40.645 which alleges common constructional defects to residences or appurtenances within a single development and which complies with the requirements of subsection 4 of NRS 40.645 for giving such notice, the contractor may respond to the named owners of the residences or appurtenances in the notice in the manner set forth in NRS 40.6472.
2. The contractor may provide a disclosure of the notice of the alleged common constructional defects to each unnamed owner of a residence or appurtenance within the development to whom the notice may apply in the manner set forth in this section. The disclosure must be sent by certified mail, return receipt requested, to the home address of each such owner. The disclosure must be mailed not later than 60 days after the contractor receives the notice of the alleged common constructional defects, except that if the common constructional defects may pose an imminent threat to health and safety, the disclosure must be mailed as soon as reasonably practicable, but not later than 20 days after the contractor receives the notice.
3. The disclosure of a notice of alleged common constructional defects provided by a contractor to the unnamed owners to whom the notice may apply pursuant to subsection 2 must include, without limitation:
(a) A description of the alleged common constructional defects identified in the notice that may exist in the residence or appurtenance;
(b) A statement that notice alleging common constructional defects has been given to the contractor which may apply to the owner;
(c) A statement advising the owner that he has 30 days within which to request the contractor to inspect the residence or appurtenance to determine whether the residence or appurtenance has the alleged common constructional defects;
(d) A form which the owner may use to request such an inspection or a description of the manner in which the owner may request such an inspection;
(e) A statement advising the owner that if he fails to request an inspection pursuant to this section, no notice shall be deemed to have been given by him for the alleged common constructional defects; and
(f) A statement that if the owner chooses not to request an inspection of his residence or appurtenance, he is not precluded from sending a notice pursuant to NRS 40.645 individually or commencing an action or amending a complaint to add a cause of action for a constructional defect individually after complying with the requirements set forth in NRS 40.600 to 40.695, inclusive.
4. If an unnamed owner requests an inspection of his residence or appurtenance in accordance with subsection 3, the contractor must provide the response required pursuant to NRS 40.6472 not later than 45 days after the date on which the contractor receives the request.
5. If a contractor who receives a notice pursuant to subsection 4 of NRS 40.645 does not provide a disclosure to unnamed owners as authorized pursuant to this section, the owners of the residences or appurtenances to whom the notice may apply may commence an action for the constructional defect without complying with any other provision set forth in NRS 40.600 to 40.695, inclusive. This subsection does not establish or prohibit the right to maintain a class action.
6. If a contractor fails to provide a disclosure to an unnamed owner to whom the notice of common constructional defects was intended to apply:
(a) The contractor shall be deemed to have waived his right to inspect and repair any common constructional defect that was identified in the notice with respect to that owner; and
(b) The owner is not required to comply with the provisions set forth in NRS 40.645 or 40.647 before commencing an action or amending a complaint to add a cause of action based on that common constructional defect.
(Added to NRS by 2003, 2034)
NRS 40.646 Notice of defect to be forwarded by contractor to subcontractor, supplier or design professional; effect of failure to forward notice; inspection of alleged defect; election to repair.
1. Except as otherwise provided in subsection 2, not later than 30 days after the date on which a contractor receives notice of a constructional defect pursuant to NRS 40.645, the contractor shall forward a copy of the notice by certified mail, return receipt requested, to the last known address of each subcontractor, supplier or design professional whom the contractor reasonably believes is responsible for a defect specified in the notice.
2. If a contractor does not provide notice as required pursuant to subsection 1, the contractor may not commence an action against the subcontractor, supplier or design professional related to the constructional defect unless the contractor demonstrates that, after making a good faith effort, he was unable to identify the subcontractor, supplier or design professional who he believes is responsible for the defect within the time provided pursuant to subsection 1.
3. Except as otherwise provided in subsection 4, not later than 30 days after receiving notice from the contractor pursuant to this section, the subcontractor, supplier or design professional shall inspect the alleged constructional defect in accordance with subsection 1 of NRS 40.6462 and provide the contractor with a written statement indicating:
(a) Whether the subcontractor, supplier or design professional has elected to repair the defect for which the contractor believes the subcontractor, supplier or design professional is responsible; and
(b) If the subcontractor, supplier or design professional elects to repair the defect, an estimate of the length of time required for the repair, and at least two proposed dates on and times at which the subcontractor, supplier or design professional is able to begin making the repair.
4. If the notice of a constructional defect forwarded by the contractor was given pursuant to subsection 4 of NRS 40.645 and the contractor provides a disclosure of the notice of the alleged common constructional defects to the unnamed owners to whom the notice may apply pursuant to NRS 40.6452:
(a) The contractor shall, in addition to the notice provided pursuant to subsection 1, upon receipt of a request for an inspection, forward a copy of the request to or notify each subcontractor, supplier or design professional who may be responsible for the alleged defect of the request not later than 5 working days after receiving such a request; and
(b) Not later than 20 days after receiving notice from the contractor of such a request, the subcontractor, supplier or design professional shall inspect the alleged constructional defect in accordance with subsection 2 of NRS 40.6462 and provide the contractor with a written statement indicating:
(1) Whether the subcontractor, supplier or design professional has elected to repair the defect for which the contractor believes the subcontractor, supplier or design professional is responsible; and
(2) If the subcontractor, supplier or design professional elects to repair the defect, an estimate of the length of time required for the repair, and at least two proposed dates on and times at which the subcontractor, supplier or design professional is able to begin making the repair.
5. If a subcontractor, supplier or design professional elects to repair the constructional defect, the contractor or claimant may hold the subcontractor liable for any repair which does not eliminate the defect.
(Added to NRS by 2003, 2035)
NRS 40.6462 Access to residence or appurtenance with alleged defect after notice of defect is given; effect on owners who did not provide notice.
1. Except as otherwise provided in subsection 2, after notice of a constructional defect is given to a contractor pursuant to NRS 40.645, the claimant shall, upon reasonable notice, allow the contractor and each subcontractor, supplier or design professional who may be responsible for the alleged defect reasonable access to the residence or appurtenance that is the subject of the notice to determine the nature and extent of a constructional defect and the nature and extent of repairs that may be necessary. To the extent possible, the persons entitled to inspect shall coordinate and conduct the inspections in a manner which minimizes the inconvenience to the claimant.
2. If notice is given to the contractor pursuant to subsection 4 of NRS 40.645, the contractor and each subcontractor, supplier or design professional who may be responsible for the defect do not have the right to inspect the residence or appurtenance of an owner who is not named in the notice unless the owner requests the inspection in the manner set forth in NRS 40.6452. If the owner does not request the inspection, the owner shall be deemed not to have provided notice pursuant to NRS 40.645.
(Added to NRS by 2003, 2036)
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:
(a) Allow an inspection of the alleged constructional defect to be conducted pursuant to NRS 40.6462; and
(b) 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:
(a) Dismiss the action without prejudice and compel the claimant to comply with those provisions before filing another action; or
(b) 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:
(a) By the contractor not later than 90 days after the contractor receives the notice; and
(b) 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:
(a) 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 his 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.
(b) May include a proposal for monetary compensation, which may include contribution from a subcontractor, supplier or design professional.
(c) 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.
(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:
(a) The repairs may be performed by the contractor, subcontractor, supplier or design professional, if he is properly licensed, bonded and insured to perform the repairs and, if he is not, the repairs may be performed by another person who meets those qualifications.
(b) 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.
(c) Any part of the residence or appurtenance that is not defective but which must be removed to correct the constructional defect must be replaced.
(d) The contractor, subcontractor, supplier or design professional shall prevent, remove and indemnify the claimant against any mechanics’ liens and materialmen’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:
(a) 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.
(b) 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.
(c) 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.
(d) 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)
NRS 40.649 Notice of defect may be presented to insurer; duties of insurer.
1. If a contractor, subcontractor, supplier or design professional receives written notice of a constructional defect, the contractor, subcontractor, supplier or design professional may present the claim to an insurer which has issued a policy of insurance that covers all or any portion of the business of the contractor, subcontractor, supplier or design professional.
2. If the contractor, subcontractor, supplier or design professional presents the claim to the insurer pursuant to this section, the insurer:
(a) Must treat the claim as if a civil action has been brought against the contractor, subcontractor, supplier or design professional; and
(b) Must provide coverage to the extent available under the policy of insurance as if a civil action has been brought against the contractor, subcontractor, supplier or design professional.
3. A contractor, subcontractor, supplier or design professional is not required to present a claim to the insurer pursuant to this section, and the failure to present such a claim to the insurer does not relieve the insurer of any duty under the policy of insurance to the contractor, subcontractor, supplier or design professional.
(Added to NRS by 2003, 2040)
NRS 40.650 Effect of rejecting reasonable offer of settlement; effect of failing to take certain actions concerning defect; effect of coverage available under homeowner’s warranty.
1. If a claimant unreasonably rejects a reasonable written offer of settlement made as part of a response pursuant to paragraph (b) of subsection 2 of NRS 40.6472 and thereafter commences an action governed by NRS 40.600 to 40.695, inclusive, the court in which the action is commenced may:
(a) Deny the claimant’s attorney’s fees and costs; and
(b) Award attorney’s fees and costs to the contractor.
?Any sums paid under a homeowner’s warranty, other than sums paid in satisfaction of claims that are collateral to any coverage issued to or by the contractor, must be deducted from any recovery.
2. If a contractor, subcontractor, supplier or design professional fails to:
(a) Comply with the provisions of NRS 40.6472;
(b) Make an offer of settlement;
(c) Make a good faith response to the claim asserting no liability;
(d) Agree to a mediator or accept the appointment of a mediator pursuant to NRS 40.680; or
(e) Participate in mediation,
?the limitations on damages and defenses to liability provided in NRS 40.600 to 40.695, inclusive, do not apply and the claimant may commence an action or amend a complaint to add a cause of action for a constructional defect without satisfying any other requirement of NRS 40.600 to 40.695, inclusive.
3. If a residence or appurtenance that is the subject of the claim is covered by a homeowner’s warranty that is purchased by or on behalf of a claimant pursuant to NRS 690B.100 to 690B.180, inclusive, a claimant shall diligently pursue a claim under the contract. If coverage under a homeowner’s warranty is denied by an insurer in bad faith, the homeowner and the contractor, subcontractor, supplier or design professional have a right of action for the sums that would have been paid if coverage had been provided, plus reasonable attorney’s fees and costs.
4. Nothing in this section prohibits an offer of judgment pursuant to Rule 68 of the Nevada Rules of Civil Procedure or NRS 17.115 if the offer of judgment includes all damages to which the claimant is entitled pursuant to NRS 40.655.
(Added to NRS by 1995, 2541; A 1997, 2719; 1999, 1442; 2003, 2044)
NRS 40.655 Limitation on recovery.
1. 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 reasonable attorney’s fees;
(b) The reasonable cost of any repairs already made that were necessary and of any repairs yet to be made that are necessary to cure any constructional defect that the contractor failed to cure and the reasonable expenses of temporary housing reasonably necessary during the repair;
(c) The reduction in market value of the residence or accessory structure, if any, to the extent the reduction is because of structural failure;
(d) The loss of the use of all or any part of the residence;
(e) The reasonable value of any other property damaged by the constructional defect;
(f) Any additional costs reasonably incurred by the claimant, including, but not limited to, any costs and fees incurred for the retention of experts to:
(1) Ascertain the nature and extent of the constructional defects;
(2) Evaluate appropriate corrective measures to estimate the value of loss of use; and
(3) Estimate the value of loss of use, the cost of temporary housing and the reduction of market value of the residence; and
(g) Any interest provided by statute.
2. The amount of any attorney’s fees awarded pursuant to this section must be approved by the court.
3. If a contractor complies with the provisions of NRS 40.600 to 40.695, inclusive, the claimant may not recover from the contractor, as a result of the constructional defect, anything other than that which is provided pursuant to NRS 40.600 to 40.695, inclusive.
4. This section must not be construed as impairing any contractual rights between a contractor and a subcontractor, supplier or design professional.
5. As used in this section, “structural failure” means physical damage to the load-bearing portion of a residence or appurtenance caused by a failure of the load-bearing portion of the residence or appurtenance.
(Added to NRS by 1995, 2541; A 1997, 2720; 2003, 2045)
NRS 40.660 Nonacceptance of offer of settlement deemed rejection. An offer of settlement made pursuant to paragraph (b) of subsection 2 of NRS 40.6472 that is not accepted within 35 days after the offer is received by the claimant is considered rejected if the offer contains a clear and understandable statement notifying the claimant of the consequences of his failure to respond or otherwise accept or reject the offer of settlement. An affidavit certifying rejection of an offer of settlement under this section may be filed with the court.
(Added to NRS by 1995, 2542; A 1999, 1442; 2003, 2045)
NRS 40.665 Settlement by repurchase; certain offers of settlement deemed reasonable. In addition to any other method provided for settling a claim pursuant to NRS 40.600 to 40.695, inclusive, a contractor may, pursuant to a written agreement entered into with a claimant, settle a claim by repurchasing the claimant’s residence and the real property upon which it is located. The agreement may include provisions which reimburse the claimant for:
1. The market value of the residence as if no constructional defect existed, except that if a residence is less than 2 years of age and was purchased from the contractor against whom the claim is brought, the market value is the price at which the residence was sold to the claimant;
2. The value of any improvements made to the property by a person other than the contractor;
3. Reasonable attorney’s fees and fees for experts; and
4. Any costs, including costs and expenses for moving and costs, points and fees for loans.
? Any offer of settlement made that includes the items listed in this section shall be deemed reasonable for the purposes of subsection 1 of NRS 40.650.
(Added to NRS by 1995, 2542; A 1997, 2721; 2003, 2046)
NRS 40.667 Effect of written waiver or settlement agreement when contractor fails to correct or repair defect properly; conditions to bringing action; effect of failure to prevail in action.
1. Except as otherwise provided in subsection 2, a written waiver or settlement agreement executed by a claimant after a contractor has corrected or otherwise repaired a constructional defect does not bar a claim for the constructional defect if it is determined that the contractor failed to correct or repair the defect properly.
2. The provisions of subsection 1 do not apply to any written waiver or settlement agreement described in subsection 1, unless:
(a) The claimant has obtained the opinion of an expert concerning the constructional defect;
(b) The claimant has provided the contractor with a written notice of the defect pursuant to NRS 40.645 and a copy of the expert’s opinion; and
(c) The claimant and the contractor have complied with the requirements for inspection and repair as provided in NRS 40.600 to 40.695, inclusive.
3. The provisions of this section do not apply to repairs which are made pursuant to an election to repair pursuant to NRS 40.6472.
4. If a claimant does not prevail in any action which is not barred pursuant to this section, the court may:
(a) Deny the claimant’s attorney’s fees, fees for an expert witness or costs; and
(b) Award attorney’s fees and costs to the contractor.
(Added to NRS by 1995, 2544; A 1997, 2723; 1999, 1442; 2003, 2046)
NRS 40.668 Action against subdivider or master developer for defect in appurtenance in planned unit development: Conditions and limitations; tolling of statutes of limitation or repose; applicability.
1. Notwithstanding the provisions of NRS 40.600 to 40.695, inclusive, a claimant may not commence an action against a subdivider or master developer for a constructional defect in an appurtenance constructed on behalf of the subdivider or master developer in a planned unit development, to the extent that the appurtenance was constructed by or through a licensed general contractor, unless:
(a) The subdivider or master developer fails to provide to the claimant the name, address and telephone number of each contractor hired by the subdivider or master developer to construct the appurtenance within 30 days of the receipt by the subdivider or master developer of a request from the claimant for such information; or
(b) After the claimant has made a good faith effort to obtain full recovery from the contractors hired by the subdivider or master developer to construct the appurtenance, the claimant has not obtained a full recovery.
2. All statutes of limitation or repose applicable to a claim governed by this section are tolled from the time the claimant notifies a contractor hired by the subdivider or master developer of the claim until the earlier of the date:
(a) A court determines that the claimant cannot obtain a full recovery against those contractors; or
(b) The claimant receives notice that those contractors are bankrupt, insolvent or dissolved.
? Tolling pursuant to this subsection applies only to the subdivider or master developer. Notwithstanding any applicable statute of limitation or repose, the claimant may commence an action against the subdivider or master developer for the claim within 1 year after the end of the tolling described in this subsection.
3. Nothing in this section prohibits the commencement of an action against a subdivider or master developer for a constructional defect in a residence sold, designed or constructed by or on behalf of the subdivider or master developer.
4. Nothing in this section prohibits a person other than the claimant from commencing an action against a subdivider or master developer to enforce his own rights.
5. The provisions of this section do not apply to a subdivider or master developer who acts as a general contractor or uses his license as a general contractor in the course of constructing the appurtenance that is the subject of the action.
6. As used in this section:
(a) “Master developer” means a person who buys, sells or develops a planned unit development, including, without limitation, a person who enters into a development agreement pursuant to NRS 278.0201.
(b) “Planned unit development” has the meaning ascribed to it in NRS 278A.065.
(c) “Subdivider” has the meaning ascribed to it in NRS 278.0185.
(Added to NRS by 1999, 1438)
Repairs
NRS 40.670 Defect which creates imminent threat to health or safety: Duty to cure; effect of failure to cure; exceptions.
1. A contractor, subcontractor, supplier or design professional who receives written notice of a constructional defect resulting from work performed by the contractor, subcontractor, supplier or design professional which creates an imminent threat to the health or safety of the inhabitants of the residence shall take reasonable steps to cure the defect as soon as practicable. The contractor, subcontractor, supplier or design professional shall not cure the defect by making any repairs for which he is not licensed or by causing any repairs to be made by a person who is not licensed to make those repairs. If the contractor, subcontractor, supplier or design professional fails to cure the defect in a reasonable time, the owner of the residence may have the defect cured and may recover from the contractor, subcontractor, supplier or design professional the reasonable cost of the repairs plus reasonable attorney’s fees and costs in addition to any other damages recoverable under any other law.
2. A contractor, subcontractor, supplier or design professional who does not cure a defect pursuant to this section because he has determined, in good faith and after a reasonable inspection, that there is not an imminent threat to the health or safety of the inhabitants is not liable for attorney’s fees and costs pursuant to this section, except that if a building inspector, building official or other similar authority employed by a governmental body with jurisdiction certifies that there is an imminent threat to the health and safety of the inhabitants of the residence, the contractor, subcontractor, supplier or design professional is subject to the provisions of subsection 1.
(Added to NRS by 1995, 2542; A 1997, 2721; 2001, 1249; 2003, 2046)
NRS 40.672 Defect in new residence: Duty to repair; deadline for repair; extensions; disciplinary action for failure to comply. Except as otherwise provided in NRS 40.670, if a contractor, subcontractor, supplier or design professional receives written notice of a constructional defect not more than 1 year after the close of escrow of the initial purchase of the residence, the contractor, subcontractor, supplier or design professional shall make the repairs within 45 days after receiving the written notice unless completion is delayed by the claimant or by other events beyond the control of the contractor, subcontractor, supplier or design professional, or timely completion of repairs is not reasonably possible. The contractor, subcontractor, supplier or design professional and claimant may agree in writing to extend the period prescribed by this section. If a contractor or subcontractor fails to comply with this section, he is immediately subject to discipline pursuant to NRS 624.300.
(Added to NRS by 1999, 1437; A 2003, 2047)
NRS 40.675 Inspection of repairs.
1. A contractor who makes or provides for repairs under NRS 40.600 to 40.695, inclusive, may take reasonable steps to prove that the repairs were made and to have them inspected.
2. The provisions of NRS 40.600 to 40.695, inclusive, regarding inspection and repair are in addition to any rights of inspection and settlement provided by common law or by another statute.
(Added to NRS by 1995, 2542)
Special Procedures
NRS 40.680 Mediation of certain claims required before action commenced or complaint amended; procedure; appointment of special master; effect of failure to mediate in good faith.
1. Except as otherwise provided in this chapter, 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 matter must be submitted to mediation, unless mediation is waived in writing by the contractor, subcontractor, supplier or design professional and the claimant.
2. The claimant and each party alleged to have caused the constructional defect must select a mediator by agreement. If the claimant and the other parties fail to agree upon a mediator within 20 days after a mediator is first selected by the claimant, any party may petition the American Arbitration Association, the Nevada Arbitration Association, Nevada Dispute Resolution Services or any other mediation service acceptable to the parties for the appointment of a mediator. A mediator so appointed may discover only those documents or records which are necessary to conduct the mediation. The mediator shall convene the mediation within 30 days after the matter is submitted to him and shall complete the mediation within 45 days after the matter is submitted to him, unless the parties agree to extend the time.
3. Before the mediation begins:
(a) The claimant shall deposit $50 with the mediation service; and
(b) Each other party shall deposit with the mediation service, in equal shares, the remaining amount estimated by the mediation service as necessary to pay the fees and expenses of the mediator for the first session of mediation and shall deposit additional amounts demanded by the mediation service as incurred for that purpose.
4. Unless otherwise agreed, the total fees for each day of mediation and the mediator must not exceed $750 per day.
5. If the parties do not reach an agreement concerning the matter during mediation or if any party who is alleged to have caused the constructional defect fails to pay the required fees and appear, the claimant may commence an action or amend a complaint to add a cause of action for the constructional defect in court and:
(a) The reasonable costs and fees of the mediation are recoverable by the prevailing party as costs of the action.
(b) Any party may petition the court in which the action is commenced for the appointment of a special master.
6. A special master appointed pursuant to subsection 5 may:
(a) Review all pleadings, papers or documents filed with the court concerning the action.
(b) Coordinate the discovery of any books, records, papers or other documents by the parties, including the disclosure of witnesses and the taking of the deposition of any party.
(c) Order any inspections on the site of the property by a party and any consultants or experts of a party.
(d) Order settlement conferences and attendance at those conferences by any representative of the insurer of a party.
(e) Require any attorney representing a party to provide statements of legal and factual issues concerning the action.
(f) Refer to the judge who appointed him or to the presiding judge of the court in which the action is commenced any matter requiring assistance from the court.
?The special master shall not, unless otherwise agreed by the parties, personally conduct any settlement conferences or engage in any ex parte meetings regarding the action.
7. Upon application by a party to the court in which the action is commenced, any decision or other action taken by a special master appointed pursuant to this section may be appealed to the court for a decision.
8. A report issued by a mediator or special master that indicates that a party has failed to appear before him or to mediate in good faith is admissible in the action, but a statement or admission made by a party in the course of mediation is not admissible.
(Added to NRS by 1995, 2543; A 1997, 2721; 2003, 2047)
NRS 40.681 Premediation discovery. Not later than 15 days before the commencement of mediation required pursuant to NRS 40.680 and upon providing 15 days’ notice, each party shall provide to the other party, or shall make a reasonable effort to assist the other party to obtain, all relevant reports, photos, correspondence, plans, specifications, warranties, contracts, subcontracts, work orders for repair, videotapes, technical reports, soil and other engineering reports and other documents or materials relating to the claim that are not privileged.
(Added to NRS by 2003, 2041)
NRS 40.684 Duties of insurer with respect to settlement conference.
1. If a settlement conference is held concerning a claim for a constructional defect, the special master, if any, or the judge presiding over the claim may order a representative of an insurer of a party to attend the settlement conference. If a representative of an insurer is ordered to attend the settlement conference, the insurer shall ensure that the representative is authorized, on behalf of the insurer, to:
(a) Bind the insurer to any settlement agreement relating to the claim;
(b) Enter into any agreement relating to coverage that may be available under the party’s policy of insurance which is required to carry out any settlement relating to the claim; and
(c) Commit for expenditure money or other assets available under the party’s policy of insurance.
2. If a representative of an insurer who is ordered to attend a settlement conference pursuant to subsection 1 fails to attend the settlement conference or attends but is substantially unprepared to participate, or fails to participate in good faith, the special master or the judge may, on his own motion or that of a party, issue any order with regard thereto that is just under the circumstances.
3. In lieu of or in addition to any other sanction, the special master or the judge may require the insurer to pay any reasonable expenses or attorney’s fees incurred by a party because of the failure of the insurer or its representative to comply with the provisions of this section or any order issued pursuant to this section, unless the special master or the judge finds that the failure to comply was substantially justified or that any other circumstances make the award of such expenses or fees unjust.
4. Any insurer which conducts business in this State and which insures a party against liability for the claim shall be deemed to have consented to the jurisdiction of the special master or the judge for the purposes of this section.
5. The authority conferred upon the special master or the judge pursuant to this section is in addition to any other authority conferred upon the special master or the judge pursuant to any other statute or any court rule.
(Added to NRS by 2003, 2040)
Disclosures
NRS 40.687 Disclosure of information concerning warranties after action is commenced; disclosure of information concerning insurance agreements; compelled production of information. Notwithstanding any other provision of law:
1. A claimant shall, within 10 days after commencing an action against a contractor, disclose to the contractor all information about any homeowner’s warranty that is applicable to the claim.
2. The contractor shall, no later than 10 days after a response is made pursuant to this chapter, disclose to the claimant any information about insurance agreements that may be obtained by discovery pursuant to rule 26(b)(2) of the Nevada Rules of Civil Procedure. Such disclosure does not affect the admissibility at trial of the information disclosed.
3. Except as otherwise provided in subsection 4, if either party fails to provide the information required pursuant to subsection 1 or 2 within the time allowed, the other party may petition the court to compel production of the information. Upon receiving such a petition, the court may order the party to produce the required information and may award the petitioning party reasonable attorney’s fees and costs incurred in petitioning the court pursuant to this subsection.
4. The parties may agree to an extension of time to produce the information required pursuant to this section.
5. For the purposes of this section, “information about insurance agreements” is limited to any declaration sheets, endorsements and contracts of insurance issued to the contractor from the commencement of construction of the residence of the claimant to the date on which the request for the information is made and does not include information concerning any disputes between the contractor and an insurer or information concerning any reservation of rights by an insurer.
(Added to NRS by 1997, 2716; A 1999, 1443)
NRS 40.688 Disclosure of defects by claimant to prospective purchaser of residence required; timing and contents of disclosure; duty of attorney to inform claimant of disclosure requirement.
1. If a claimant attempts to sell a residence that is or has been the subject of a claim governed by NRS 40.600 to 40.695, inclusive, he shall disclose, in writing, to any prospective purchaser of the residence, not less than 30 days before the close of escrow for the sale of the residence or, if escrow is to close less than 30 days after the execution of the sales agreement, then immediately upon the execution of the sales agreement or, if a claim is initiated less than 30 days before the close of escrow, within 24 hours after giving written notice to the contractor pursuant to NRS 40.645:
(a) All notices given by the claimant to the contractor pursuant to NRS 40.600 to 40.695, inclusive, that are related to the residence;
(b) All opinions the claimant has obtained from experts regarding a constructional defect that is or has been the subject of the claim;
(c) The terms of any settlement, order or judgment relating to the claim; and
(d) A detailed report of all repairs made to the residence by or on behalf of the claimant as a result of a constructional defect that is or has been the subject of the claim.
2. Before taking any action on a claim pursuant to NRS 40.600 to 40.695, inclusive, the attorney for a claimant shall notify the claimant in writing of the provisions of this section.
(Added to NRS by 1999, 1439; A 2003, 2048)
Additional Requirement for Actions Against Design Professionals
NRS 40.6882 “Complainant” defined. As used in NRS 40.6884 and 40.6885, unless the context otherwise requires, “complainant” means a person who makes a claim or files an action against a design professional pursuant to NRS 40.600 to 40.695, inclusive.
(Added to NRS by 2001 Special Session, 66; A 2003, 2049)
NRS 40.6884 Attorney required to consult expert; required affidavit of attorney; required report of expert.
1. Except as otherwise provided in subsection 2, in an action governed by NRS 40.600 to 40.695, inclusive, that is commenced against a design professional or a person primarily engaged in the practice of professional engineering, land surveying, architecture or landscape architecture, including, without limitation, an action for professional negligence, the attorney for the complainant shall file an affidavit with the court concurrently with the service of the first pleading in the action stating that the attorney:
(a) Has reviewed the facts of the case;
(b) Has consulted with an expert;
(c) Reasonably believes the expert who was consulted is knowledgeable in the relevant discipline involved in the action; and
(d) Has concluded on the basis of his review and the consultation with the expert that the action has a reasonable basis in law and fact.
2. The attorney for the complainant may file the affidavit required pursuant to subsection 1 at a later time if he could not consult with an expert and prepare the affidavit before filing the action without causing the action to be impaired or barred by the statute of limitations or repose, or other limitations prescribed by law. If the attorney must submit the affidavit late, he shall file an affidavit concurrently with the service of the first pleading in the action stating his reason for failing to comply with subsection 1 and the attorney shall consult with an expert and file the affidavit required pursuant to subsection 1 not later than 45 days after filing the action.
3. In addition to the statement included in the affidavit pursuant to subsection 1, a report must be attached to the affidavit. Except as otherwise provided in subsection 4, the report must be prepared by the expert consulted by the attorney and include, without limitation:
(a) The resume of the expert;
(b) A statement that the expert is experienced in each discipline which is the subject of the report;
(c) A copy of each nonprivileged document reviewed by the expert in preparing his report, including, without limitation, each record, report and related document that the expert has determined is relevant to the allegations of negligent conduct that are the basis for the action;
(d) The conclusions of the expert and the basis for the conclusions; and
(e) A statement that the expert has concluded that there is a reasonable basis for filing the action.
4. In an action brought by a claimant in which an affidavit is required to be filed pursuant to subsection 1:
(a) The report required pursuant to subsection 3 is not required to include the information set forth in paragraphs (c) and (d) of subsection 3 if the claimant or his attorney files an affidavit, at the time that the affidavit is filed pursuant to subsection 1, stating that he made reasonable efforts to obtain the nonprivileged documents described in paragraph (c) of subsection 3, but was unable to obtain such documents before filing the action;
(b) The claimant or his attorney shall amend the report required pursuant to subsection 3 to include any documents and information required pursuant to paragraph (c) or (d) of subsection 3 as soon as reasonably practicable after receiving the document or information; and
(c) The court may dismiss the action if the claimant and his attorney fail to comply with the requirements of paragraph (b).
5. An expert consulted by an attorney to prepare an affidavit pursuant to this section must not be a party to the action.
6. As used in this section, “expert” means a person who is licensed in a state to engage in the practice of professional engineering, land surveying, architecture or landscape architecture.
(Added to NRS by 2001 Special Session, 66)
NRS 40.6885 Effect of compliance with or failure to comply with NRS 40.6884.
1. The court shall dismiss an action governed by NRS 40.600 to 40.695, inclusive, that is commenced against a design professional or a person primarily engaged in the practice of professional engineering, land surveying, architecture or landscape architecture, including, without limitation, an action for professional negligence, if the attorney for the complainant fails to:
(a) File an affidavit required pursuant to NRS 40.6884;
(b) File a report required pursuant to subsection 3 of NRS 40.6884; or
(c) Name the expert consulted in the affidavit required pursuant to subsection 1 of NRS 40.6884.
2. The fact that an attorney for a complainant has complied or failed to comply with the provisions of NRS 40.6884 is admissible in the action.
(Added to NRS by 2001 Special Session, 67)
Miscellaneous Provisions
NRS 40.6887 Submission of questions or disputes concerning defects to State Contractors’ Board; regulations.
1. A claimant or any contractor, subcontractor, supplier or design professional may submit a question or dispute to the State Contractors’ Board concerning any matter which may affect or relate to a constructional defect, including, without limitation, questions concerning the need for repairs, the appropriate method for repairs, the sufficiency of any repairs that have been made and the respective rights and responsibilities of homeowners, claimants, contractors, subcontractors, suppliers and design professionals.
2. If a question or dispute is submitted to the State Contractors’ Board pursuant to this section, the State Contractors’ Board shall, pursuant to its regulations, rules and procedures, respond to the question or investigate the dispute and render a decision. Nothing in this section authorizes the State Contractors’ Board to require the owner of a residence or appurtenance to participate in any administrative hearing which is held pursuant to this section.
3. Not later than 30 days after a question or dispute is submitted to the State Contractors’ Board pursuant to subsection 1, the State Contractors’ Board shall respond to the question or render its decision. The response or decision of the State Contractors’ Board:
(a) Is not binding and is not subject to judicial review pursuant to the provisions of chapters 233B and 624 of NRS; and
(b) Is not admissible in any judicial or administrative proceeding brought pursuant to the provisions of this chapter.
4. The provisions of this chapter do not preclude a claimant or a contractor, subcontractor, supplier or design professional from pursuing any remedy otherwise available from the State Contractors’ Board pursuant to the provisions of chapter 624 of NRS concerning a constructional defect.
5. If an action for a constructional defect has been commenced, the court shall not stay or delay any proceedings before the court pending an answer to a question or decision concerning a dispute submitted to the State Contractors’ Board.
6. The State Contractors’ Board shall adopt regulations necessary to carry out the provisions of this section and may charge and collect reasonable fees from licensees to cover the cost of carrying out its duties pursuant to this section.
(Added to NRS by 2003, 2039; A 2005, 477)
NRS 40.689 Preference given to action; action may be assigned to senior judge; assessment of additional expenses.
1. Upon petition by a party:
(a) The court shall give preference in setting a date for the trial of an action commenced pursuant to NRS 40.600 to 40.695, inclusive; and
(b) The court may assign an action commenced pursuant to NRS 40.600 to 40.695, inclusive, to a senior judge.
2. If the action is assigned to a senior judge upon petition by a party:
(a) Any additional expenses caused by the assignment must be borne equally by each party involved; or
(b) The judge may distribute any additional expenses among the parties as he deems appropriate.
(Added to NRS by 1997, 2716)
NRS 40.690 Limitation on bringing claim against governmental entity during period for resolution; effect of settlement; contractor or claimant may require party to appear and participate.
1. A claim governed by NRS 40.600 to 40.695, inclusive, may not be brought by a claimant or contractor against a government, governmental agency or political subdivision of a government, during the period in which a claim for a constructional defect is being settled, mediated or otherwise resolved pursuant to NRS 40.600 to 40.695, inclusive. The settlement of such a claim does not affect the rights or obligations of the claimant or contractor in any action brought by the claimant or contractor against a third party.
2. A contractor or claimant may require a party against whom the contractor or claimant asserts a claim governed by NRS 40.600 to 40.695, inclusive, to appear and participate in proceedings held pursuant to those sections as if the party were a contractor and the party requiring him to appear were a claimant. The party must receive notice of the proceedings from the contractor or claimant.
(Added to NRS by 1995, 2544; A 1997, 2723; 1999, 1443)
NRS 40.692 Notice not required to be given to intervener in action. A claimant who commences an action for a constructional defect is not required to give written notice of a defect pursuant to NRS 40.645 to any person who intervenes in the action as a party after it is commenced. If such a person becomes a party to the action:
1. For the purposes of NRS 40.645, the person shall be deemed to have been given notice of the defect by the claimant on the date on which the person becomes a party to the action; and
2. The provisions of NRS 40.600 to 40.695, inclusive, apply to the person after that date.
(Added to NRS by 1999, 1438; A 2003, 2049)
NRS 40.695 Tolling of statutes of limitation or repose; applicability.
1. Except as otherwise provided in subsection 2, statutes of limitation or repose applicable to a claim based on a constructional defect governed by NRS 40.600 to 40.695, inclusive, are tolled from the time notice of the claim is given, until 30 days after mediation is concluded or waived in writing pursuant to NRS 40.680.
2. Tolling under this section applies to a third party regardless of whether the party is required to appear in the proceeding.
(Added to NRS by 1995, 2544; A 1997, 2723; 1999, 1444; 2003, 2049)
MISCELLANEOUS PROVISIONS
NRS 40.750 Fraud against financial institution for purpose of obtaining loan secured by lien on real property.
1. As used in this section, “financial institution” means a bank, mortgage broker, mortgage banker, credit union, thrift company or savings and loan association, or any subsidiary or affiliate of a bank, mortgage broker, mortgage banker, credit union, thrift company or savings and loan association, which is authorized to transact business in this State and which makes or acquires, in whole or in part, any loan of the kind described in subsection 2.
2. Except as otherwise provided in subsection 5, a person who, for the purpose of obtaining a loan secured by a lien on real property, knowingly conceals a material fact, or makes a false statement concerning a material fact knowing that the statement is false, is liable to any financial institution which relied upon the absence of that concealed fact or on that false statement for any damages it sustains because of the fraud.
3. In addition to its actual damages, a financial institution may recover exemplary or punitive damages in an amount not to exceed 50 percent of the actual damages awarded.
4. The cause of action provided by this section:
(a) Is not, for the purposes of NRS 40.430, an action for the recovery of any debt or an action for the enforcement of any right secured by mortgage or lien upon real estate.
(b) Is in addition to and not in substitution for any right of foreclosure existing in favor of the financial institution. Any recovery pursuant to this section does not limit the amount of a judgment awarded pursuant to NRS 40.459, but the financial institution is not entitled to recover actual damages more than once for the same loss.
5. The provisions of this section do not apply to any loan which is secured by a lien on real property used for residential purposes if:
(a) The residence is a single-family dwelling occupied by the person obtaining the loan, as represented by him in connection with his application for the loan; and
(b) The loan is for the principal amount of $150,000 or less.
(Added to NRS by 1987, 1346; A 1999, 3802; 2003, 3570)
NRS 40.760 Summary eviction of person using facility for storage as residence.
1. When a person is using a facility for storage as a residence, the owner or his agent shall serve or have served a notice in writing which directs the person to cease using the facility as a residence no later than 24 hours after receiving the notice. The notice must advise the person that:
(a) NRS 108.475 requires the owner to ask the court to have the person evicted if he has not ceased using the facility as a residence within 24 hours; and
(b) He may continue to use the facility to store his personal property in accordance with the rental agreement.
2. If the person does not cease using the facility as a residence within 24 hours after receiving the notice to do so, the owner of the facility or his agent shall apply by affidavit for summary eviction to the justice of the peace of the township wherein the facility is located. The affidavit must contain:
(a) The date the rental agreement became effective.
(b) A statement that the person is using the facility as a residence.
(c) The date and time the person was served with written notice to cease using the facility as a residence.
(d) A statement that the person has not ceased using the facility as a residence within 24 hours after receiving the notice.
3. Upon receipt of such an affidavit the justice of the peace shall issue an order directing the sheriff or constable of the county to remove the person within 24 hours after receipt of the order. The sheriff or constable shall not remove the person’s personal property from the facility.
4. For the purposes of this section, “facility for storage” means real property divided into individual spaces which are rented or leased for storing personal property. The term does not include a garage or storage area in a private residence.
(Added to NRS by 1989, 213)—(Substituted in revision for NRS 40.555)
NRS 40.770 Limitation on liability of seller, seller’s agent and buyer’s agent for failure to disclose certain facts concerning property.
1. Except as otherwise provided in subsection 6, in any sale, lease or rental of real property, the fact that the property is or has been:
(a) The site of a homicide, suicide or death by any other cause, except a death that results from a condition of the property;
(b) The site of any crime punishable as a felony other than a crime that involves the manufacturing of any material, compound, mixture or preparation which contains any quantity of methamphetamine; or
(c) Occupied by a person exposed to the human immunodeficiency virus or suffering from acquired immune deficiency syndrome or any other disease that is not known to be transmitted through occupancy of the property,
? is not material to the transaction.
2. In any sale, lease or rental of real property, the fact that a sex offender, as defined in NRS 179D.400, resides or is expected to reside in the community is not material to the transaction, and the seller, lessor or landlord or any agent of the seller, lessor or landlord does not have a duty to disclose such a fact to a buyer, lessee or tenant or any agent of a buyer, lessee or tenant.
3. In any sale, lease or rental of real property, the fact that a facility for transitional living for released offenders that is licensed pursuant to chapter 449 of NRS is located near the property being sold, leased or rented is not material to the transaction.
4. A seller, lessor or landlord or any agent of the seller, lessor or landlord is not liable to the buyer, lessee or tenant in any action at law or in equity because of the failure to disclose any fact described in subsection 1, 2 or 3 that is not material to the transaction or of which the seller, lessor or landlord or agent of the seller, lessor or landlord had no actual knowledge.
5. Except as otherwise provided in an agreement between a buyer, lessee or tenant and his agent, an agent of the buyer, lessee or tenant is not liable to the buyer, lessee or tenant in any action at law or in equity because of the failure to disclose any fact described in subsection 1, 2 or 3 that is not material to the transaction or of which the agent of the buyer, lessee or tenant had no actual knowledge.
6. For purposes of this section, the fact that the property is or has been the site of a crime that involves the manufacturing of any material, compound, mixture or preparation which contains any quantity of methamphetamine is not material to the transaction if:
(a) All materials and substances involving methamphetamine have been removed from or remediated on the property by an entity certified or licensed to do so; or
(b) The property has been deemed safe for habitation by a governmental entity.
7. As used in this section, “facility for transitional living for released offenders” has the meaning ascribed to it in NRS 449.0055.
(Added to NRS by 1989, 629; A 1995, 845; 1997, 1674; 2003, 1338; 2005, 2353)