Navigating construction defect claims under NRS Chapter 40 in Nevada demands a strategic approach. A...
Construction defects range from improperly installed plumbing and tile to improperly installed windows and exterior walls. The range of defects is broad, and each defect has its own severity in repercussions. When construction defects result in property damage or harm to a person, compensation may be available to those who are affected.
Property owners experiencing the effects of negligent construction may be able to receive compensation for their losses. Lawsuits may be filed against a contractor, developer, or any others involved in the design and construction of the property in question.
The Most Common Construction Defects in Nevada
Faults in construction are not always considered defects. Faults are deemed defects when they are not completed in a “good or workmanlike manner” and “proximately causes physical damage” or “present an unreasonable risk of injury to a person or property”. Construction defects commonly develop during the building design, planning, supervision, construction, and inspection phases of residential or commercial projects. Defects may include deficiencies in the manufacturing, design, construction, or repairs of new and existing property.
Two of the most common construction defects are patent defects and latent defects. The difference between patent and latent defects relies on how easily detectable the defect presents itself. Patent defects are easier to recognize. Latent defects are not as easily detectable and are easily missed during inspections and walk-throughs.
Patent defects are often obvious and out in the open. The naked eye should be able to see the defect during any routine inspection. The average individual with no prior building knowledge should be capable of observing and reasonably understanding that there seems to be a concern and/or defect. One example of a patent defect is severely cracked and flaking plaster. This defect can be easily noticed by walking around the building.
Unlike patent defects, latent defects are hidden and hard to detect. Latent defects may be hard to notice during inspection due to the location of the defect. Latent defects are often hidden under flooring, behind walls, or within the soil that the building is constructed on. Most of the areas listed are inaccessible to owners and their inspectors. Latent defects may include, but are not limited to, improperly compacted soil, improperly installed plumbing, roofs, and windows, etc.
Categories of Construction Defects
There are four main categories responsible for defects under construction law. The categories include poor workmanship, material deficiencies, design deficiencies, and land defects. Each category has its own ramifications for construction defect cases.
Poor workmanship is defined as any defects caused by labor that was performed incorrectly or negligently. One or more defects may arise due to the poor performance of contractors. Contractors may have failed to follow applicable codes, industry quality standards, construction documents, or the manufacturer’s installation instructions. Workmanship defects may appear as cracks in the foundation or load-bearing walls, plumbing issues, and faulty electrical wiring. Improper soil compaction is a workmanship error that may cause a building’s foundation to sink, crack, or nurture other damage.
Material defects involve the use of damaged, inadequate, or substandard building materials during the construction of a building. Defective construction materials may leave a building with poor structural support. When a building is not supported properly, its features may perform inappropriately and begin deteriorating faster than anticipated. Material deficiencies are often in relation to plumbing fixtures, roofing components, and window weatherstripping.
Design defects refer to errors within the design elements of a structure. Deficiencies in design are a result of contractors building structures based on an architect or engineer’s flawed design. Architects and engineers who are responsible often failed to obey building codes set in place to make buildings structurally sound. These mistakes mandate a redesign and/or replacement of various components to meet the correct standards.
Before a structure is built, the soil conditions, topography, and various other data must be correctly evaluated. Soil subsidence and expansions are both responsible for continuing a cycle of contraction and expansion that weaken the foundation of buildings. This may lead to other defects presenting themselves in the future. Other land deficiencies may include improper grading, insufficient compaction, inadequate site drainage, and the inappropriate depth of pilasters.
Assessing Damages for Construction Defects
Construction defect laws are designed to encourage the cooperation of the parties involved in the claim. The first step of the prelitigation process requires a written notice to be delivered to the contractor in question. The letter must include any details that are known about the defect and any damages or injuries as a result of the deficiency.
The contractor is permitted to inspect the structure and is given the opportunity to fix the defect and repair any damages. Financial compensation may also be offered to the claimant by the contractor. If negotiations are not possible, a construction defects attorney will ensure all prelitigation requirements are fulfilled. Once all prerequisites are met, the attorney can assist in filing a lawsuit on behalf of the claimant. Failing to follow the proper procedures or acting in bad faith may lead to the claimant becoming unable to recover the full expenses caused by defective construction.
To recover damages, claimants must prove the defect exists. Claimants must then prove the contractor/subcontractor within the claim is responsible. The attorney’s role in the construction defect claim process includes providing help with defect analysis. Defect analysis identifies defects and their causes. Claimants must also provide proof of the losses experienced due to the defects. Meticulous examinations are done to determine whether the alleged defects are a result of:
- Poor workmanship
- Defective materials
- Inadequate blueprints or specifications of details
- Deviation from manufacturing installation recommendations
- Improper maintenance
Claimable Defect Damages
Each construction defect lawsuit is unique and can be difficult to navigate. A construction defect attorney can advise and guide claimants in comprehending legal issues and all options available to them. Damages available in a construction defect claim may include: expert fees, litigation costs, reasonable attorneys’ fees, temporary housing costs, costs of repair of the defective conditions, resultant damage, interest, the amount of property reduced in value due to the defect(s), and loss of the use of any part of the affected property and value of any other property damaged.
Common lawsuits for construction defects include breach of contract and negligence. Breach of contract lawsuits are brought against the contractor and other parties involved in the design, planning, and construction of a structure. Negligence claims are filed when negligent behavior causes a construction defect that is responsible for damage to a property or injury to individuals on the said property.
Breach of Contract
Breach of contract is composed of three main categories. The categories include direct damages, consequential damages, and punitive damages.
Direct damages are in place to compensate for the foreseen or contemplated losses directly linked to a breach of contract. Unpaid contracts, defective work cost repair, and reduced project value are all examples of direct damages. Direct damages are less difficult to prove due to fiscal amounts being provided.
Consequential damages include lost profits and can include lost bonding capacity, financing costs, and overhead costs. Proving consequential damages is more difficult than claiming direct damages. To qualify, damages must be proven as a proximate consequence of a breach and must have been reasonably foreseeable.
Punitive damages are also under the umbrella of breach of contract claims. These damages are seldom rewarded in comparison to direct and consequential damages. The breach of contract claim must involve blatant wrongs such as conversion or fraud.
Damages claimed under the umbrella of negligence are often referred to as compensatory damages. Compensatory damages are awarded to claimants who have suffered property damage and/or a physical injury. The amount of compensation is established with the intention of returning the victim to the same quality of life they experienced before the act of negligence. Compensatory damages may be categorized as either tangible or intangible losses.
Tangible losses are easily calculated and include all current and projected medical expenses and lost wages. Calculations for property damage are executed by the cost of repair or replacement. This can include the loss of use of property while it is in the repair or replacement process.
Intangible losses do not have a specific expense attached. Losses considered intangible are pain and suffering, emotional/mental distress, and other subjective losses the victim has suffered. The amount awarded is in proportion to the tangible losses granted.
How long is a developer responsible for defects in Nevada? Each state has its own Statute of Limitation that provides a time window in which a victim can file a legal claim. Construction defect attorneys can determine if a victim is within the correct time window to take legal action, and may be able to ask for an extension if time has exceeded limitations.