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What Is Latent Defect?

Latent defects are one of the two most common types of defects found in new home construction. Unlike patent defects, latent defects are not immediately noticeable to the naked eye during an inspection. These defects typically aren’t apparent in a home inspection or even during a walk-through.

Since 2000, Reno’s population growth has soared by nearly 50%. The demand for housing solutions has attracted a volume of builders. Unfortunately, sometimes new home builders try to ensure a speedy construction process and cut costs simultaneously. This can lead to defective construction. Since latent defects are more difficult to identify, they can often cause unseen damage over time and significant financial loss for families. A construction defect lawyer can help you understand your rights under Nevada law should you discover a latent defect in your home.

Common Types of Latent Defects

A latent defect is a deficiency that is hidden or hard to detect, even after a thorough inspection, because these defects may be hidden behind walls, under flooring, or within the soil, the home is built on. These areas may be inaccessible to the presumptive owner or their inspector and cannot be detected with a visual inspection, no matter how thorough.

Our firm has seen a number of different types of latent defects in the Northern Nevada region, including but not limited to, improperly prepared expansive clay soil, improperly compacted soil, improperly installed plumbing, improperly installed windows, roofs, etc.  The problem with latent defective conditions is that it could be years after a homeowner purchases the home before resultant damage is discovered.  For instance, expansive clay soil movement could take 6-8 years depending upon Nevada’s drought conditions to show the extensive drywall and/or stucco cracking that generally will occur.  Defectively installed and corroding plumbing systems could take years before a leak actually occurs in the walls or beneath a home. Hidden water damage and mold can occur for years before being noticed by a homeowner which can result in extremely costly remediation and repair of the home.  

How Do You Deal with Latent Defects?

It is very important to contact a construction defect attorney as soon as you see the damage that might be caused by a latent defect.  For instance, water intrusion through a defectively installed window, a roof leak, or severe drywall, or stucco cracking, could all be indicative of a very serious underlying and hidden defective condition.  An experienced construction defect attorney and a team of qualified experts will be able to help you determine what the cause of the damage is and who should be financially responsible for repair.

Contact your builder!  As soon as you see the damage being caused by a latent defect, contact your builder.  If your builder tells you that your home is out of warranty or is unwilling to help, then immediately contact an experienced construction defect attorney who can provide you with information regarding applicable statutes of repose and statutes of limitations that may apply to your claim.  Given that latent defects often take a while to manifest damage, it is important to act quickly once discovered so that you can file a timely claim.  

Make sure to take a lot of photos and videos of any damage being caused by the latent defect so that you have good evidence to support your claim should you decide to pursue one. Nevada has a very strict prelitigation and litigation process for residential construction defect claims so make sure you consult with someone with adequate experience to preserve and pursue your construction defect claim.

Can You Sue a Contractor for Delays?

As a property owner, you may be able to sue a contractor for delays in the completion of a Nevada construction project. Not every construction delay is grounds for a lawsuit against a contractor, however. Depending on the cause of the delay, whether a liquidated damages provision exists, and whether the delay is unreasonable, you may have grounds to sue.  

What Are Common Causes of Construction Delays?

Delays are common in the construction industry in Nevada, and sometimes they are unavoidable. In other cases, however, contractors, suppliers, and even property owners unreasonably cause construction projects to be held up. 

Common culprits of construction delays that may be excusable include:

  • Severe weather 
  • Natural disasters
  • Scheduling conflicts
  • Budget issues
  • Miscommunication
  • Supply shortages

However, sometimes unreasonable construction delays are caused by the intentional or negligent actions of the property owner or contractor. While you cannot generally sue a contractor for delays that you caused, or issues that are out of the contractor’s control, you may have grounds for a lawsuit if the contractor acted intentionally, negligently and/or if an applicable liquidated damages provision exists in the contract.

When Can You Sue a Contractor for Delays?

If a construction delay is caused by the negligence or intentional actions of the contractor, or someone the contractor is responsible for, and the company fails to deliver promptly, you may be able to file a lawsuit and hold the contractor accountable for delays. If the contractor is responsible for causing the delay, a lawsuit can help you recover compensation for some of the financial losses you incurred.

The penalty for contractors not finishing on time is generally handled as a breach of contract claim. But, to get compensation, you must have a valid contract and prove that the defendant committed a breach without any excusable reason.  Additionally, there either needs to be a liquidated damages provision or actual damages suffered. 

However, if you’re to blame for delays, a contractor may be able to sue you. This is because unnecessary hold-ups on your end can lead to loss of revenue for the contractor.  

Types of Construction Delay Claims

Construction delay claims fall under the following categories:

Excusable vs. Inexcusable Delays

An excusable delay is unforeseeable and beyond a contractor’s control. For instance, a hurricane or tornado can strike when builders are halfway through a project, crippling their progress. Likewise, a disaster like a fire or flood can make work unsafe for construction workers.

Excusable delays should be outlined in your construction contract. When an excusable delay is in play, you may need to offer the contractor additional time, compensation, or both. 

On the contrary, an inexcusable delay is one that a contractor is entirely responsible for and could have avoided. For instance, a builder that doesn’t show up on the job site consistently, or overbooks their workers, may be liable for damages.

Critical vs. Non-Critical Delays

In the construction industry, a critical delay negatively impacts project completion or a milestone date. Critical delays tack extra time onto the completion of the project as a whole.

Issues that can lead to critical delays include budget inaccuracies or wrong estimates. Improper financial planning can undermine the contractor’s ability to buy materials and pay workers. That can impede the project’s progress or halt operations altogether, causing stagnation.

A non-critical delay is one that impacts certain activities but does not affect the ultimate completion date of the project or important milestones. 

You can use the critical path method to determine whether a specific issue is a critical or non-critical delay.

Concurrent Delays

Concurrent delays refer to a scenario where two simultaneous events impede a construction project’s progress. These delays can happen when at least two independent causes of delay occur or delay events during the same period. You and your contractor can also encourage this issue’s manifestation by delaying the project on two parallel critical path chains.

What Damages Can Property Owners Recover for Construction Delays?

If a delay has affected your construction project and the contractor is found to be at fault, you may be able to sue for the following damages, depending on the language in the applicable contract documents.

Lost Productivity

Construction delays can cause a loss of productivity for business owners. If you are a business owner who manufactures or produces a product on the property in question, and the contractor’s delay interfered with your productivity, the contractor can be held liable for your losses.


As a project drags on and takes longer than expects, you may be subjected to additional costs of transporting personnel, supplies, and equipment from the site. When that happens, you can claim compensation for demobilization.

Equipment Rental Costs

Depending on the construction project, you may need to rent machines and tools like excavators, bucket loaders, hammer drills, and air compressors. The longer you use them, the more you have to pay a rental company. You may be able to recover compensation for your expenses through a construction delay claim.

Storage and Relocation Charges

If you had to pay to store your furnishings or equipment while your home or building was under construction, a delay in the project can result in additional storage charges.  Additionally, if you are paying expenses for other housing or business location arrangements during the course of construction, a loss of use or relocation damages claim may exist.  These types of damages may be recoverable as part of the breach of contract claim.

Increased Material Costs

Sometimes, contractors delay projects by weeks or months. During this period, the price of materials may rise. The cost difference can affect your budget and completion timeline. 

Liquidated Damages

Some construction contracts will have a liquidated damages provision that may identify a per-day amount for every day the project goes beyond the completion date specified in the contract.   This is often seen in commercial construction contracts.

Can a Contractor Deny a Delay Claim?

A contractor can question the viability of a delay claim on the following grounds:

  • Negligence on your part

A construction company may argue that delay causes or events were foreseeable and preventable from your end, but you failed to take the measures required to curb them. For instance, they may claim that you didn’t make the property available to them during a certain time frame, which ultimately caused the delay.

  • Ambiguous contract language

A contract between you and a construction company should discuss every aspect of delays in clear terms. It should have all the necessary details, including aspects of construction contracts that are often overlooked, as well as project schedules and a fixed completion time. It should also include ample time for providing delay notices.

If a contract has unclear terms and provisions, a contractor may be able to use its language to void your claim.  On the other hand, Nevada law will generally construe ambiguities in a contract against the drafter.  So, if the Contractor drafted the contract, then the ambiguous contract language could work in your favor.

Can a Contractor Sue an Owner for Delays?

In the same way that you may be able to sue a contractor for delays, the contractor may also be able to sue you in some situations. If you are responsible for causing a construction delay, you may be held liable for the contractor’s losses. Since even small delays can have a ripple effect, impacting workers, subcontractors, suppliers, and others, damages can add up quickly.  

How Long Is a Developer Responsible for Defects in Nevada?

Statutes of limitations and repose work together to limit the period you can hold a developer responsible for construction defects. In Nevada, the statute of limitations applicable to your case varies depending on the cause of action on which you base your construction defect lawsuit. The statute of repose is 10 years from the construction’s substantial completion date. However, this repose period does not apply to claims arising from fraud. The limitations period starts running once you have or should have discovered a defect or injury, but it doesn’t extend beyond the repose period. Some special circumstances may toll the statutes of limitations and repose. Below you’ll find a review of the rules and requirements that will help you better understand the answer to the question, “how long is a developer responsible for defects?”

How Long Is a Developer Responsible for Defects?

While statutes of limitations and repose limit the amount of time you can hold construction professionals liable for defects, they operate differently. It’s essential to understand their differences. Certain rules and circumstances can toll or extend the statutes of limitations and repose. You should also be aware that you’re required to give the developer or contractor notice and the right to repair before a lawsuit can be pursued.  In fact, there are very strict prelitigation procedures that must be followed which is why you should seek guidance from an experienced construction defect attorney.

What Are the Statute of Limitations for Filing a Construction Defect Claim?

Statutes of limitations are laws governing the time you have to file a lawsuit against a defendant after suffering some type of harm. A typical statute of limitation will give the number of years you have to file a claim after you discover or reasonably should have discovered the harm you suffered. Statutes of limitations help reduce and prevent cases of unfair prosecutions, witness disappearance or death, and loss of important evidence.

In construction defect cases, statutes of limitations bar legal actions against contractors or developers after a specified period after the discovery of the defective condition. The exact timing varies depending on the cause of action you’re pursuing in the lawsuit.  For example, the statute of limitations for a breach of written contract or written warranty is six years but is shorter for actions involving negligence.  Contact your local construction defect attorney to find out more.

What Is the Statute of Repose for Construction Defect Claims?

A statute of repose sets the final date by which you must file a lawsuit. Its timing is based on the occurrence of a particular event rather than the harm suffered. With regard to construction defects, the clock for the statute of repose usually starts ticking when the construction is substantially complete, for example, when the certificate of occupancy is issued for the property. When you fail to file an action by the final deadline, the developer can no longer be exposed to a potential lawsuit.

Without statutes of repose, the exposure of construction professionals to claims could run indefinitely because the discovery of a defect or injury may happen at any given time. The statute of repose sets a limit on how far the discovery rule can apply.

For example, the state’s statute of repose may give you 10 years from when the construction is substantially completed to pursue a claim, and the statute of limitations that applies to your case may be 6 years after discovering the defect. If you discover the defect 7 years after substantial completion of the construction, then you’ll only have three years remaining to file a claim, despite the applicable statute of limitation time frame. This analysis is not applicable to claims of fraud.  Contact an experienced attorney for more information.

Can the Statute of Limitations for Construction Defect Claims Be Extended?

Certain circumstances allow for the statute of limitations and repose to be tolled or extended. For instance, the statute of repose tolls if a construction professional engaged in fraud. You can bring a lawsuit at any time after substantial completion to recover damages if there was an act of fraud that caused the deficiency in planning, design, supervision, observation, or construction. This provision doesn’t apply to low-tiered subcontractors if they unknowingly concealed a fraud-related construction defect while performing their work.

In certain circumstances, the statutes of limitations may be tolled when repairs have been promised or are being made by the developer. This situation becomes very fact specific to your case, so it is important to contact an experienced attorney to discuss the timing of your claim.

Special rules or exceptions may apply to your case. Therefore, it’s best to talk to a construction defect attorney about your case before concluding that you have or don’t have a valid claim. The attorney will help you understand and navigate the statutes and any applicable exceptions. He or she will also help you prove any exceptions that should apply to your case.

NRS Chapter 40 Process

Before you can sue construction professionals for defects, you must notify them of the defects and give them a chance to repair them. The notice should contain reasonable details of the alleged defects. If the developer or contractor chooses to perform repairs, you should allow the developer to inspect and make those necessary repairs. There are very specific requirements for the prelitigation, notice, inspection, and right to repair so it is best to consult with a construction defect lawyer to assist in the process.  One deficiency in the prelitigation process could risk your overall case.

It is also important to note that even though there is a strong statutory right to repair, construction professionals cannot condition these offered repairs on a release agreement.  If a builder or contractor offers to make a repair to your home but wants you to sign something in return, make sure to have an experience attorney review the document first because you could end up barring future claims.

The NRS “Chapter 40” prelitigation and the litigation process is very rule and expert-driven and can be very complex.  It is important to timely contact a construction defect attorney if you observe problems with your home and are unable to get them resolved through the construction professional and/or the Nevada Contractor’s Board.

What Is the Attorney’s Role in the Construction Defect Claim Process?

The attorney’s role in the construction defect claim process is a critical one. When a construction defect is discovered, an attorney can help the owner of the property understand their legal rights and options. This may include reviewing the construction contract and any warranties that were provided, as well as the applicable laws and regulations.

What Is the Attorney’s Role in the Construction Defect Claim Process?

If the owner decides to pursue a claim for damages, the attorney can assist with gathering and organizing evidence, such as photographs, expert reports, and other documentation. The attorney can also negotiate with the other parties involved, such as the contractor, subcontractor, and any insurance companies, in an effort to reach a resolution.

If the parties are unable to resolve the issue through negotiation, the attorney will make sure that all prelitigation requirements are met and then assist filing a lawsuit on behalf of the owner. The attorney can represent the property owner in court and advocate for the victim’s rights and interests.

Throughout the process, the attorney can provide advice and guidance to the owner and help them understand the legal issues and options available to them.

What Qualifies as a Construction Defect?

A construction defect is a problem with the design, construction, or maintenance of a building or other structure that impairs its use, value, or safety. Some common types of construction defects include:

  1. Structural defects: These defects involve problems with the foundation, framing, or other structural elements of a building, and can include issues such as cracked foundations, sagging roofs, and collapsing walls.
  2. Water infiltration: Water infiltration defects involve problems with the building’s ability to keep out water, such as leaks, mold, and rot.
  3. Electrical defects: Electrical defects involve problems with the wiring, outlets, or other electrical components of a building and can include issues such as faulty wiring, overloaded circuits, and inadequate grounding.
  4. Plumbing defects: Plumbing defects involve problems with the pipes, fixtures, or other plumbing components of a building and can include issues such as leaks, blockages, and faulty water heaters.
  5. HVAC defects: HVAC (heating, ventilation, and air conditioning) defects involve problems with the building’s heating and cooling systems and can include issues such as faulty thermostats, inefficient heating and cooling, and inadequate ventilation.

Construction defects can occur for a variety of reasons, including faulty design, poor workmanship, and the use of defective materials. It’s important to identify and address construction defects as soon as possible to prevent further damage and ensure the safety of the building.

What Are Some Common Construction Defect Injuries?

Construction defects can cause a wide range of injuries, depending on the specific circumstances of the case. Some common types of construction defect injuries include slip and fall accidents or electrical injuries. 

Common Damages in Construction Defect Injury Cases

In a construction defect injury case, damages are typically the financial compensation that the injured party is seeking from the party or parties responsible for the defect.

Some common types of damages that may be sought in a construction defect injury case include the following:

  1. Medical expenses: This may include the cost of medical treatment, such as hospital stays, surgery, and rehabilitation.
  2. Lost wages: If the injury has caused the injured party to miss work, they may be able to recover damages for the wages they have lost as a result.
  3. Pain and suffering: The injured party may be able to recover damages for the physical pain and emotional suffering that they have experienced as a result of the injury.
  4. Property damage: If the construction defect has caused damage to the injured party’s property, such as their home or vehicle, they may be able to recover damages to repair or replace the damaged property.
  5. Loss of consortium: If the injury has had a negative impact on the injured party’s relationship with their spouse or other family members, they may be able to recover damages for the loss of consortium.

The amount of damages that may be recovered in a construction defect injury case will depend on the specific circumstances of the case and the severity of the injury. A construction defect attorney in Nevada can help the injured party assess their damages and determine the appropriate amount to seek in a claim or lawsuit.

How Long Does a Construction Defect Injury Case Take?

The length of a construction defect injury case can vary widely depending on a number of factors, including the complexity of the case, the availability of evidence, and the willingness of the parties to reach a settlement.

In some cases, a construction defect injury case may be resolved relatively quickly through negotiation or mediation, and the parties may be able to reach a settlement within a few months.

In other cases, the case may take longer to resolve, especially if it goes to trial. A trial can take several months or even years to complete, depending on the complexity of the case and the court’s schedule.

It’s important to keep in mind that every case is different, and it’s difficult to predict exactly how long a construction defect injury case will take. An attorney can provide more information about the specific timeline for your case and help you understand the steps that will be involved in resolving your claim.

Can I Mediate a Construction Defect Injury Case?

Mediation is a process in which the parties to a dispute meet with a neutral third party, called a mediator, to try to resolve their differences and reach a mutually acceptable agreement.

Mediation can be an effective way to resolve a construction defect injury case because it allows the parties to have control over the outcome of the case and to reach a resolution that is tailored to their specific needs and interests.

Mediation is voluntary. Both parties must agree to participate. If one party is not willing to mediate, the case may need to be resolved through other means, such as negotiation or litigation.

What Is Construction Negligence?

Construction negligence is the failure to use reasonable care in the design, construction, or maintenance of a building or other structure, resulting in harm or damages.

Construction negligence can occur when a contractor, architect, engineer, or other professional fails to meet the accepted standards of care in the industry and causes harm as a result.

Examples of construction negligence may include:

  1. Using faulty or defective materials in the construction of a building.
  2. Failing to follow proper building codes or industry standards.
  3. Failing to properly design or engineer a building or structure.
  4. Neglecting to properly supervise or train employees.
  5. Failing to properly maintain a building or structure.

If you believe that you have been injured as a result of construction negligence, you may be able to seek damages through a personal injury lawsuit. It’s a good idea to speak with an attorney who is experienced in construction defect cases to understand your legal options and determine the best course of action.

What Is a Limited New House Warranty?

A limited new house warranty is a type of warranty that is provided by a builder or developer to a buyer of a new home. The warranty typically covers defects in materials and workmanship in the home for a certain period of time, usually one or two years.

A limited new house warranty typically does not cover normal wear and tear or damage caused by the homeowner. It is also important to note that a limited new house warranty is not the same as a homeowner’s insurance policy, which covers damages to the home caused by events such as fires, storms, and burglaries.

It’s a good idea to carefully review the terms of a limited new house warranty before purchasing a new home. The warranty should specify what is covered and what is not, as well as the process for making a claim if a defect is discovered. If you have any questions about the warranty, it’s a good idea to ask the builder or developer for clarification.

An Attorney’s Role in a Construction Defect Injury Claim

An attorney can play a critical role in a construction defect injury claim. An attorney can help the injured party understand their legal rights and options, gather and organize evidence, negotiate with the other parties involved, and represent the injured party in court if necessary.

An attorney can also provide advice and guidance to the injured party throughout the process, helping them understand the legal issues and options available to them. An attorney can work with the injured party to assess their damages and determine the appropriate amount to seek in a claim or lawsuit.

If you have been injured as a result of a construction defect, it’s a good idea to speak with an attorney who is experienced in construction defect cases. An attorney can help you understand your legal rights and options and assist you in pursuing a claim for damages.

When Are Developers Liable in Construction Defect Case?

When are developers liable in a construction defect case? Developers could be liable in a construction defect case if they acted negligently during the construction process, failed to execute their contract, violated their warranty, or engaged in fraudulent activities. This legal responsibility applies even when the developer did not know about the defects, or stemmed from a third-party contractor. 

If you have detected a construction defect in your private, residential, or commercial property in Reno, Nevada, a construction defect lawyer can investigate your case and examine the evidence to prove liability on the part of the developer. 

What Is a Construction Defect?

A construction defect refers to aspects of a construction project that do not meet one or more contract provisions. Construction defects fall into two different groups: patent and latent. Patent defects constitute those problems that inspectors can identify through careful inspection. A perfect example of a patent defect is a missing roof tile that is noticeable during an inspection. 

Latent defects include those that inspectors cannot detect through careful inspection. An example of a latent defect is a leaking roof without visible leak marks. Such a defect may take a few years to become obvious. 

Establishing Legal Liability for Construction Defects

When a homeowner becomes aware of a construction defect, he or she can establish liability under different legal theories.


Developers have a legal duty to exercise reasonable care and caution when handling a construction project. Failure to use reasonable care in a construction project amounts to negligence. In this case, you need to show that a reasonably careful developer with similar training would have avoided the defect in the same or similar conditions.


You discover a construction defect in your project immediately or after several years, and the defect was caused because the developer was negligent. You can hold the company liable for damages resulting from the developer’s negligent actions. 

Third parties injured by a construction defect can also hold the original developer liable for their injuries. These third parties include future buyers or tenants of the property.

A developer is also liable for construction defects caused by negligent subcontractors. Plumbers, electricians, and carpenters are examples of subcontractors in construction projects. 

Breach of Contract 

A developer can be liable for construction defects for failure to satisfy the terms of a construction contract. A breach of contract claim generally arises when a developer violates a duty spelled out in the contract, disregards escrow instructions, or fails to comply with purchase or sale documentation. 

Courts usually rely on the principle of substantial performance when a breach of contract claim arises in construction defect cases. The court deems the contract complete if the developer delivered a completed project but failed to meet all the contract specifications. 

However, even upon substantial completion, the homeowner will not be liable for the total cost of the contract. Instead, the homeowner will pay the difference between the full contract price and the diminished value of the property caused by the defect. 


Let’s say a developer has a contract price of $300,000 to construct a commercial property. A subcontractor hired by the developer performs electrical wiring incorrectly. The faulty electrical wiring lowers the property’s market value by $30,000. In this scenario, you will only need to pay the developer $270,000 for constructing your commercial property. 

Breach of Warranty

The same principles of breach of contract apply to breach of warranty. The difference is that the developer failed to honor the warranty, not the contract. A construction contract may feature warranties for the property or products.


Let’s say a developer offers a three-year warranty on your newly constructed property. You then detect a defect within three years. In this situation, the developer should remove the defect. You might have a breach of warranty claim if the developer fails or refuses to repair the defect. 

Strict Liability

Nearly all states, including Nevada, have an implied warranty of habitability. This warranty promises that a particular property or building is suitable for human occupation and imposes strict liability on the developer. 

You don’t have to prove that the developer acted negligently in a construction defect case involving strict liability. Instead, you only need to provide evidence to show that the developer constructed the property, the property has a construction defect, and the defect makes the residence uninhabitable because it violates the provisions of the Nevada housing or health codes. 


Fraud in construction defect cases arises when a developer deliberately misleads a property owner regarding the quality of a construction project. Knowingly making untrue statements or advertisements may amount to fraud. The developer may, for instance, state that a roof is leak-free when the roof leaks easily. 

Negligent Misrepresentation 

Negligent misrepresentation happens when a developer says something is a fact despite not having evidence to substantiate the assertions. 


The developer tells you that your roof can withstand the weight of three feet of standing snow, even though he or she does not know how much weight the roof can bear. The roof collapses during a winter storm with heavy snowfall. The developer cannot justify his or her claim when you seek answers. 

Recoverable Damages in Construction Defect Cases 

What types of damages can be recovered in a construction defect case in Nevada? You can recover repair costs in a construction defect case. These repair costs cover the design fees, developer fees, and construction manager charges. You can also recover relocation expenses if you must move out of the house during the repairs. The cost incurred by a consultant in defect detection and documentation is also recoverable. The amount of compensation recovered will depend on the facts and circumstances of your construction defect case. 

How Can a Construction Defect Lawyer Help You? 

The cost of fixing construction defects can be high. Some defects can cost you hundreds of thousands of dollars. Others can even reach millions of dollars, especially when a high-value construction project is involved. Defects that remain undetected for years can damage your property and valuable possessions and potentially result in injuries or fatalities.

The best step to take immediately after suspecting or detecting a problem is to involve a construction defect lawyer. The lawyer will review the specific facts of your case and explain your rights. 

The lawyer will open an investigation into the case to compile all the information and evidence required to prove the developer’s negligence. This investigation may involve hiring a construction professional to inspect the building and prepare a competent inspection report. 

After investigating your case, your lawyer will help you navigate the mandatory prelitigation process in Nevada. The prelitigation process requires homeowners to give the developer adequate notice of the construction defect and allow an opportunity to remedy the defect.

If the developer refuses to remedy the defect or is unable to remedy the defect, your attorney can help you file a lawsuit to recover damages. Most lawsuits settle before reaching trial. Your lawyer can use the evidence he or she has collected to aggressively negotiate on your behalf. If negotiations fail, he or she can take your case to trial and argue for you in front of a jury. 

Did your negligent developer file bankruptcy? Not to worry. Your lawyer can help you file a claim with the developer’s liability insurance or pursue a claim against subcontractors after seeking leave from the bankruptcy court.

Whatever challenges you are facing in your construction defect case, a construction lawyer can help you overcome them.

What Is Construction Negligence?

Construction negligence happens when a project fails to comply with building codes and standards of care. Negligence at any stage of a construction project can threaten the safety of occupants and the integrity of the affected structure. Construction negligence commonly arises during the actual construction or repair of a building, but it can occur during the design phase of a project as well.

Types of Construction Defects 

Construction defects fall into two categories: patent and latent.

The difference between patent and latent construction defects is that patent defects refer to known or obvious construction deficiencies or those easily detectable after inspection. Latent defects are hidden construction deficiencies or those that are hard to detect even after a thorough inspection because the defect may be hidden behind walls or under flooring. The most common types of construction defects include: 

Design Defects 

Design defects stem from the failure of an engineer or architect to create error-free and properly organized construction designs. They can arise by error, inaccuracy, or omission. A redesign or replacement of a specific component may help rectify an error-related design defect. 

Material Defects 

These defects occur because of defective, damaged, or insufficient building material. Material defects arising from the manufacturer may be detected too late in the construction process to remedy the defect, or after the project is complete. For this reason, material defects may be costly to correct. 

Workmanship Defects 

These defects arise when a contractor does not comply with specific building codes or standards during construction of a structure or a component. Workmanship defects can also happen when builders use unskilled labor to cut costs. In fact, using unskilled labor is one of the signs the builder cut corners.

What Are Examples of Construction Negligence?

Architect and Builder

An architect provides inaccurate information to a builder making a trench for electrical cables. The builder damages a water pipe, causing the neighbor’s property to flood. The architect may be liable to the builder for violating the duty to provide accurate information. The architect may also be liable for the flood and damages caused. 

Builder and Pedestrian 

A builder fails to construct catch platforms to keep falling materials from hitting those walking near a construction site. A ladder falls on a pedestrian passing near the construction site. The builder may be legally responsible for the pedestrian’s injuries for failing to observe reasonable safety standards. 

Builder and Homeowner 

A contractor or builder constructs a house with foundation problems. Upon inspection, the homeowner discovers the issue. The homeowner has the right to hold the builder or contractor liable for damages arising from his or her negligent work. 

Attempts by home builders to speed up the construction process while controlling costs are one of the main factors fueling the construction defect pandemic. Unfortunately, home builders sometimes take shortcuts when the existing home inventory cannot meet the skyrocketing demand for homes. 

Duty of Care in Construction Negligence Cases 

Duty of care is a legal term that describes the level of responsibility of parties involved in the construction process. These parties have a legal duty to obey safety standards and building regulations to prevent defects and accidents during the construction project. This duty of care covers construction workers, homeowners, commercial property owners, homeowners’ associations, residents, and subsequent property buyers.

Multiple parties may be in charge of duty of care in a construction project. The reason is that different parties may take over management or supervisory responsibilities during construction. These parties could include:

  • Architects 
  • Engineers 
  • General contractors 
  • Subcontractors 
  • Surveyors 
  • Project managers 

How Do Courts Establish Construction Negligence? 

Construction professionals must employ reasonable care, expertise, and workmanship during construction. Damages, including injuries, construction defects, or monetary losses, may arise if these parties are negligent in their actions. 

Proving construction negligence in the court is an arduous task. You must prove specific elements to win a construction negligence case. A construction defect lawyer can compile the evidence and convincing arguments required to prove these four elements. 

Duty of Care 

As mentioned earlier, a contractor owes a homeowner the duty to observe safety standards and relevant building codes. This duty of care kicks in once the contractor signs a construction contract with the homeowner or when a builder decides to build a home that will be sold to the public. 

Violation of Duty of Care 

After establishing the duty of care, you must demonstrate that the contractor violated his or her duty of care. Your lawyer will help you show that the contractor acted negligently and failed to fulfill the contract provisions, generally through the assistance of a litigation construction expert witness.


This element requires you (or the lawyer) to show that the contractor’s actions directly led to your injury, damages, or losses. Your injury, damage, or loss could have been prevented if the contractor or builder had honored his or her duty of care. 


You must show that you suffered real damages due to the contractor’s negligent actions. Foundation damage, mold growth, and exterior cracking, for instance, may indicate negligence on the part of the contractor. 

What Is the Statute of Limitations/Repose for Construction Negligence? 

The deadline for filing a construction negligence claim varies with state and local law. Nevada, for instance, has a 10-year statute of repose after substantial project completion. This deadline applies unless claims arise from fraud. 

The fraud exception under Nevada’s statute of repose excludes junior subcontractors if they unintentionally conceal fraud-related construction defects. This unintentional concealment by junior subcontractors must be “reasonable.” Your lawyer can help you understand your state-specific statute of limitations and statute of repose and how to proceed with the case.

Then the 3-year Nevada statute of limitations for negligence also comes into play, which triggers from when you knew or should have known of the defective condition.  Both the statute of repose and statute of limitation will be applied so it is important to contact a construction defect attorney so that you understand your deadline to file an action. 

How A Construction Defect Attorney Can Assist in Your Case 

A construction defect attorney is a crucial legal resource in establishing construction negligence and recovering damages. An attorney who has handled construction negligence cases before will know the rules, regulations, and court decisions that apply to your case. The attorney can help your case in the following ways: 

Determining Damages 

A construction defect attorney can investigate your case and build a claim that accounts for the full extent of your damages. The attorney can assemble evidence to help prove how the contractor’s negligent action directly caused your damages, losses, or injuries. This is usually done by hiring experts for the types of defects present at the home.

Mastery of Construction Rules and Regulations 

Local and state rules are the bedrock of construction law. A lawyer who understands your local laws can easily identify incidents of local building code violations and all pre-litigation and litigation requirements. 

Accessing Qualified Construction Professionals 

Construction defect attorneys regularly work with engineers, architects, and other qualified individuals in the construction industry. They can tap into these work relationships to find a qualified person to examine the structure and determine whether the contractor followed the relevant standard of care and codes. 

Bringing an Expert Witness on Board 

You may need an expert witness to testify for you to win a construction negligence case. The witness can explain to the Jury or Judge the applicable safety standards and building regulations in your area. The witness can then show how your contractor or builder breached those standards and regulations. 

Other contractors, engineers, builders, or other parties with specific information about the construction in question may qualify as expert witnesses. Your lawyer will know whom to bring on board as an expert witness.

What Would Be Considered a Construction Defect Under a Limited New House Warranty?

Homeowners who have a limited new house warranty from their builders can file a claim for qualifying defects that are damaging their newly constructed home. They should consult a construction defect attorney if they are unsure if the warranty covers the defect.  

What Is a New House Warranty?

When homeowners hire a contractor to build their new home, they expect the house to be safe and free of defects. However, even if a house looks perfect, it may have latent defects that homeowners will not find for months or years.  

Latent defects in construction are problems with the house that the homeowners or inspectors cannot detect through a visual inspection of the home. Homeowners may not become aware of such defects for months or years. At that point, the defect may have caused severe damage requiring extensive repairs. 

Most builders give homeowners a builder warranty, also called a limited new house warranty, to protect them against potential construction defects. Nevada law does not require builders to issue a new house warranty. However, many contractors include them in the contract of sale. 

New house warranties include one-, two-, and ten-year terms. A typical warranty provides:

  • a one-year warranty for labor and materials
  • two years’ protection for mechanical defects (plumbing, electrical, heating, air conditioning, and ventilation systems), and
  • ten years’ warranty for structural defects in the home 

What Is a Construction Defect Under a Limited New House Warranty?

Labor and Material Defects

The one-year labor and material portion of a limited new house warranty covers defective construction materials and poor workmanship, leading to defects in the house. Faulty products or defective building material might include windows that leak, concrete that cracks under pressure, or drywall that crumbles. Defective materials include anything the builder used in the house’s construction that fails to function adequately. This portion of the warranty also covers any problems with labor leading to the improper installation of products. 

The labor and material warranty covers almost any problem arising from the home’s construction. However, it only lasts for one year. For many defects, homeowners will not see the resulting damage for years. Substandard roofing or improperly installed windows that allow leaks are examples of defects that may not be immediately obvious. Leaks can occur between walls or inside attics where homeowners cannot easily see them. By the time the water damage spreads to a visible area, the material and labor warranty will have likely expired.

Mechanical Defects

The two-year mechanical defect portion of the warranty covers problems with things like the plumbing, electrical, or heating and air conditioning system. This portion of the warranty is much more limited than the labor and material warranty. However, it can be very valuable if one of the expensive systems in a house is defective and needs extensive repair. 

Structural Defects

In a limited new house warranty, the term structural defect refers to specific problems with construction leading to issues with a house’s structural integrity. A structural defect is actual physical damage to a load-bearing portion of the home that causes it to become unsafe, unsanitary, or otherwise unlivable. Load bearing portions of the house include the:

  • Footing and foundation systems
  • Beams
  • Girders
  • Lintels
  • Columns
  • Load-bearing walls and partitions
  • Roof framing systems; and 
  • Floor systems   

While this is the legal definition of a structural defect, a limited new home warranty might specify that it covers additional defects beyond damage to the load-bearing structure. Construction defect attorneys in Nevada are familiar with limited new home warranties used by local builders. They can help homeowners determine what would be considered a construction defect under a limited new house warranty.  


While limited new home warranties cover many defects stemming from the home’s construction, they typically exclude certain problems and expenses. Most warranties do not cover out-of-pocket expenses homeowners might incur if they move out of their homes while the builder or other contractors remedy the defects. They also do not cover:

  • Household appliances
  • Small cracks in brick, tile, cement, or drywall  
  • Damage that the homeowner caused through abuse, misuse, neglect, or poor maintenance
  • Damage caused by “acts of God” such as storms or falling trees 

How Can Homeowners Make a Claim Under a New House Warranty?

When homeowners realize a construction defect has led to home damage, they should determine whether their limited new house warranty covers the defect. They can skip trying to enforce the warranty if the problem clearly is not covered or the warranty period has expired. However, if there is a possibility the warranty covers the defect, the homeowner should quickly notify the builder. It is better for homeowners to file a claim and withdraw it if it is baseless, rather than risk the warranty expiring. 

Each limited new house warranty will outline the procedures for filing a claim. Many warranties require homeowners to send the builder a written notification. Others may include a telephone number to a hotline somewhere in the warranty documentation. However, homeowners should always notify the builder in writing. It is a good practice for homeowners to keep a record of their interactions with the builder in the case of a dispute. They can send the initial letter by certified mail and use the certified mail receipt to prove the builder received notice of the claim.   

Homeowners should act quickly once they discover a defect. Warranties cover most defects only through the first year. Homeowners want to make sure they do not fall outside the warranty’s time limit because they delayed making their claim. They should also pay close attention to the warranty’s wording. Some warranties only require homeowners to file a claim with the builder within the designated period to claim their rights. Others require homeowners and builders to reach an agreement before the warranty’s term expires. Homeowners can consult construction defect attorneys in Nevada for help filing a claim or interpreting their limited new house warranty.

What if the Builder Refuses to Remedy a Construction Defect?

Builders and homeowners may disagree about whether a warranty covers the defect and resulting damages. If they cannot come to terms, they have to look for another option to settle their dispute. Warranties often require homeowners to submit to mediation or arbitration to resolve disputes with the builder. 


If a warranty calls for mediation, homeowners and builders must meet with a neutral third party, called a mediator, and attempt to resolve their dispute. The mediator guides discussion between the parties and tries to help them reach an agreement. Mediators do not have any decision-making power.  They can only make suggestions and nudge the parties toward a reasonable settlement.

If mediation fails, homeowners must submit a claim to arbitration or file a case against the builder in the appropriate court. If the warranty requires arbitration, homeowners must file for arbitration rather than with the court. 


In arbitration, both sides present their case to an arbitrator or a panel of arbitrators. The parties can have legal representation and present evidence, witnesses, and expert testimony. The arbitrator acts as judge and jury and makes a final decision regarding the homeowner’s claim. Most warranties and agreements providing for arbitration require both parties to accept the decision without appeal, meaning the arbitrator’s decision is final. If homeowners lose their arbitration case, they cannot seek relief through any other avenue.


Homeowners can file a civil case against the builder in civil court if the warranty does not require arbitration. They can request that the builder perform its duty under the warranty agreement. They can also seek monetary compensation from the builder for the costs they incurred repairing their home. In a court case, the parties present their case before and judge and jury, and the jury decides whether the homeowner deserves to prevail. Homeowners can appeal the decision if they lose.

5 Aspects of Construction Contracts that Are Often Overlooked

There are a few aspects of construction contracts that are often overlooked. Without a properly drafted contract drafted by an experienced construction attorney, owners can find themselves unprotected in situations that can result in extra cost and time. A carefully drafted contract will help owners avoid common problems that can derail a project.

What Should Be Included?

There are six commonly overlooked aspects of construction contracts that, if included by a construction attorney, can protect owners from unexpected delays and costs:

  • Project Schedule
  • Change to the Scope of Work
  • Notice Provisions
  • Lien Claims
  • Force Majeure Clauses
  • Prevailing Party 

Project Schedule

Including a detailed project schedule provides clarity and security for owners. Construction contracts should include a baseline project schedule that provides the different phases of construction and their timelines. They should also include provisions for providing the owner with progress updates and a schedule recovery plan in the case of delays. 

Change to the Scope of Work

Construction contracts should include a way to resolve disputes that arise over change orders. A contract can include a provision that the contractor continues work when a dispute arises, resolving issues over price or timeline at a later date. Alternatively, a contract can provide for a fast-tracked dispute resolution to resolve any issues over change orders.  

Notice Provisions

Notice provisions are important to ensure that owners stay informed of potential delays. The notice provision in a construction contract should specify that contractors should provide written notice of any problems that arise. It should further specify whether electronic notice is sufficient and in what circumstances special delivery, such as delivery by certified mail, is required.

Lien Claims

Construction contracts should include provisions that specify the steps to be taken when a lien is filed. The contract can include language that requires the contractor immediately take steps to satisfy lien claims by any subcontractors. The contract can also require that the contractor indemnify the owner for any proceedings or lien claims if the contractor fails to take the necessary steps to resolve the claim after being notified by the owner.

Force Majeure Clauses

Due to the COVID-19 pandemic, detailed Force Majeure clauses should be included in construction contracts. Force Majeure clauses typically excuse a party from completing its obligations if an unforeseeable event prevents its performance. The Force Majeure clause should specify that written notice that the clause has been triggered is required. The delay must end once the unexpected event ends. 

Prevailing Party

It is important that if a legal dispute does arise, there is a legal mechanism to recover attorneys’ fees and costs.  The easiest way to provide for this is to include a prevailing party clause in the contract that allows a prevailing party in an action (either a lawsuit or arbitration) to recover reasonable attorneys’ fees and costs.  Without such a provision, a party to a contract could end up with no legal ability to recover attorneys’ fees.

It is also important to consult with an attorney to understand the legal implications of other contract provisions, such as arbitration provisions (waiving the right to a jury trial) and waiver of warranties.  It is important not to sign a contract unless all terms are understood.  A construction contract attorney can assist with explaining all possible implications.  

What Is Fueling the Construction Defect Pandemic

COVID-19 may be fueling the construction defect crisis. Homeowners who are planning on building a house, or have recently built a house, should understand the risk of construction defects. Further, homeowners should ensure they have a remedy to correct any defects in their new home. 

Why has the COVID-19 Pandemic Caused a Rise in Construction Defects?

The past two decades have seen a constant upheaval in the housing market. During the Great Recession, an unprecedented number of people lost their homes. The demand for apartment buildings rose drastically as people looked for more affordable housing options. However, when the COVID-19 Pandemic made social distancing a necessity, the shared gyms, business centers, and common areas that were once a draw became potential health risks. People began to move away from densely populated city centers and look for homes with more room. Living in a house gives the option to remain socially distanced from neighbors, have more room to work and take care of family, and have more outdoor space. 

The increase in demand for homes paired with a low existing home inventory has caused new construction to skyrocket. Homebuilders are struggling to work quickly and control costs. These factors alone are risks for increased construction defects. However, home builders are also dealing with a labor shortage. Fewer workers may lead to less oversight, leaving more room for mistakes

How can Homeowners Protect Themselves?

Construction defects can be difficult for homeowners to detect because they are often hidden behind beautiful new exteriors. Some common hidden defects are leaks behind siding, under roof assemblies, through faulty window installations, or defective plumbing. Defective soils conditions can also be hidden and not become evident until many years of ownership have passed. These hidden defects can cause serious damage to a home over time and create financial and emotional hardship for a homeowner. 

However, homeowners have options to protect themselves. Homeowners who are looking to build a new home should be sure to ask about the construction process and what quality control is in place before beginning construction. Further, they should ensure that labor and material warranties are in place.  Ask the builder or contractor for their state contractor’s license number to make sure there aren’t any prior contractor’s board complaints, and most importantly, make sure to ask for proof of insurance so that there is an ability for financial recovery should something go wrong and damages are incurred.

If homeowners discover defects in their new home, they do have legal recourse under both Nevada and California law. Although navigating warranties and lawsuits in construction cases can be difficult, an experienced construction defect lawyer can help guide homeowners through the process.  If you have questions about your rights as a homeowner, call a construction defect attorney.

Trouble in the Neighborhood: Are Construction Defects Turning Your Dream Home into a Nightmare?

Homebuyers whose dream home turned into a nightmare because of construction defects may have legal recourse against negligent builders. Buyers frequently put down significant amounts of money for new houses.  In fact, generally, one’s home is their biggest financial investment. When these dream homes begin to fall apart, new homeowners may face significant financial challenges.

Builders May Be Liable for Construction Defects

Even when homes are brand new, they are not necessarily free from defects. Builders can cut corners to save money or make mistakes in construction. Negligent builders and contractors can be made to pay in litigation because homebuyers may be entitled to a home that is free from defects.  State law (e.g. Nevada vs. California) vary in procedure and available damage recovery, which is why it is important to consult with a construction defect attorney.

Construction defect claims generally involve two basic issues: 1) work that was not done in accordance with a written contract, plans or specifications or 2) work that was done in violation of code and/or standards and is causing damage. These defects can be patent (obvious to the naked eye) or latent (hidden defect generally discovered by an expert). 

If a construction defect lawsuit is successful, depending on local state law, the homeowner may be entitled to recover for: cost of repairs, diminution of value, loss of use, expert fees, litigation costs, and sometimes attorney’s fees. 

New Homes with Serious Defects

In some cases, construction defects appear quickly after moving into a new home.  In other instances, the defects could take years to start showing damage to put a homeowner on notice of a potential issue.  For instance, defective soil conditions could result in damage within the first year or could take many years to appear depending on dry or wet winters.  Evidence of defective soil conditions could include: cracking exterior stucco, cracking interior drywall, especially at windows and doors, cracked tile floors, and difficulty opening and closing doors/windows. Anytime a homeowner sees excessive cracking at their home, an expert should be contacted because there is likely an underlying defect that is the cause of the cracking.  

Even when purchasing a newly built home, it is a good idea to hire a third-party home inspector to check for defective conditions that a lay homeowner might not see or know is wrong. However, unfortunately, even with a good home inspector, some defective conditions may not appear until years after moving in.  Once a homeowner sees or experiences defective conditions in their home, they should document the evidence with photos and videos as much as possible and put the builder or contractor on written notice immediately.  If a homeowner is unable to get the builder or contractor to repair issues with their new home, it is important to contact a construction defect attorney because the time clock could be running out to pursue a claim.  A homeowner needs to be careful not to let a builder or contractor drag things out because the homeowner could be at risk for a barred claim under applicable statutes of limitation or statutes of repose.  Bottom line, when in doubt, a homeowner should contact an attorney to make sure they understand their legal rights.

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